Sixth Circuit Potentially Expands Back Pay Damages in Title VII Cases

By Malorie A. Alverson, Esq.

Last month the Sixth Circuit issued its opinion in Szeinbach v. The Ohio State University, opening up the door for plaintiffs alleging discrimination under Title VII and seeking back pay, to, in certain circumstances, look to the salaries of other employers to determine the appropriate level of back pay rather than being limited to the salary offered at the discriminating employer.

Dr. Sheryl Szenbach sued The Ohio State University (“OSU”) for discrimination and retaliation under Title VII of the Civil Rights Act of 1964. After a three week trial, the jury returned a verdict awarding her $513,368 in damages.  The first $300,000 represented compensatory damages, while the remaining $213,368 represented back pay to account for OSU’s illegal conduct.

OSU moved for a remittitur of the award on the ground that it was excessive in relation to the evidence of damages that Dr. Szenbach had put forward at trial. The district court denied the motion with respect to the compensatory damages, but granted the motion with respect to the jury’s award of back pay, reducing Dr. Szenbach’s award by $213,368.  Dr. Szenbach then appealed arguing that she had adequately proved her entitlement to back pay.

On appeal, the Sixth District affirmed the district court decision concluding the evidence Dr. Szenbach submitted was wholly speculative. However, in reaching its decision, the Sixth Circuit rejected the district court’s determination that back pay could not be based on an amount that an outside employer – other than the discriminating defendant itself – would have paid, finding this limitation to be inconsistent with the plain language of the of the act.  Notably, the Sixth Circuit stated that “nothing in the statute forecloses the possibility that the amount might depend on what the plaintiff could have earned while working for a different employer.”

Accordingly, while Dr. Szeinbach failed to prove such losses at trial, this Sixth Circuit decision does recognize that a plaintiff can argue that an act of discrimination or retaliation warrants damages under Title VII liability for the lost difference between what the plaintiff earned and what she could have earned elsewhere.