Employees who are not performing up to expectations should be given notice of their deficiencies and an opportunity to improve, if at all possible.  The deficiencies should be well documented in order to avoid misunderstandings and to protect against needless acrimony and costly litigation.

The need for documentation and the type of documentation that is appropriate when disciplining employees is often not intuitive.  Managers need to be properly trained in order to avoid future problems, risks, and disruptions, as made clear by two appellate court decisions in 2024, which make it easier to sue for discrimination under federal law.

What Are the Two Cases?

Supreme Court Case

On April 17, 2024, the U.S. Supreme Court issued a unanimous decision in Muldrow v. St. Louis.  In that case, the court held that an individual suing for sex discrimination under r Title VII of the Civil Rights Act of 1964 (Title VII) did not need to show significant or material harm in order to state a valid claim.  Rather, the employee only needed to show “some” harm.

In that case, a female sergeant was transferred to a different division that did not affect her rank or pay, but did adversely affect her schedule, and certain other benefits.  Prior to the transfer, a supervisor made sexist comments concerning the employee.  While the Court of Appeals for the Eighth Circuit held that the harm suffered by the employee was not “adverse” enough to state a claim, the Supreme Court reversed, and significantly reduced the nature and severity of the “adverse action” that must be taken in order to support a Title VII claim.

Second Circuit Case

On March 26, 2024, the U.S. Court of Appeals for the Second Circuit issued a decision in Bart v. Golub Corp. which, like Muldrow, was a case brought under Title VII for gender discrimination.

In the Bart case, the employer had a well-documented a history of performance issues with the employee.  Some of the performance issues were even acknowledged by the employee.  As a result of these issues, the employee’s employment was terminated.

The Second Circuit found that, despite the documented history of performance deficiencies, the employer had made several derogatory comments toward women, including the plaintiff, during the course of her employment.  As a result, the Second Circuit vacated the District Court’s summary judgment grant to the employer and remanded the case for further proceedings. A trial is scheduled for August 2025.

Employer Takeaways

The Muldrow and Bart cases make it easier to assert claims under Title VII.  In order to avoid such claims, it is important to ensure that employees are trained so that they avoid creating environments where individuals feel victimized on the basis of gender or another characteristic protected under applicable law.  Once a complaint is lodged, it is important that prompt and appropriate action is taken to address it and ensure that similar issues do not arise in the future.

It is also important to ensure that disciplinary issues are well-documented so that employees believe they have been treated fairly.  Documentation of employment deficiencies will not only give employees an opportunity to improve, but may also prevent the first visit to an employment lawyer.  And, of course, documentation will be useful, if not necessary, to defeat a meritless employment discrimination claim.

Wofsey, Rosen’s employment lawyers are happy to provide assistance in evaluating your training protocols and helping to resolve employment issues before they result in litigation.