On Wednesday, the Sixth Circuit issued its decision in Szeinbach v. The Ohio State University. The case centered on Szeinbach’s claim that she was discriminated against while she was employed as a professor with the Ohio State University College of Pharmacy. Szeinbach alleged that she was the victim of discrimination and retaliation stemming from her support of a fellow colleague’s discrimination claim.

Szeinbach brought suit under Title VII of the Civil Rights Act of 1964. After a three-week trial, the jury awarded Szeinbach damages in the amount of $513,368. The award was comprised of $300,000 for compensatory damages, the statutory maximum under 42 U.S.C. § 1981a(b)(3), and $213,368 for back pay, the amount calculated by Szeinbach’s expert. The expert’s calculation of back pay was based on the amount of money that a comparable employee would have made at other schools across the country. Ohio State moved for, and was granted, a remittitur, reducing the damages award by $213,368 - the value of the back pay. The District Court explained the decision by applying the holding from Kaiser v. Buckeye Youth Center, a case from the Southern District of Ohio which held that an award of back pay could not be based on an amount that an employer other than the discriminating defendant itself would have paid.

On appeal to the Sixth Circuit, the decision to grant Ohio State’s motion for a remittitur was affirmed, with the Court explaining that Szeinbach had failed to establish, with reasonable certainty, that she was entitled to back pay. But the Sixth Circuit rejected the district court’s application of Kaiser, opting to adopt the Fifth Circuit’s interpretation of the proper method for calculating back pay as articulated in Nassar v. Univ. of Texas Sw. Med. Ctr.

The ramification of the Sixth Circuit’s decision in Szeinbach v. The Ohio State University could be significant. After the Sixth Circuit’s holding on Wednesday, plaintiffs alleging discrimination under 42 U.S.C. § 2000e-5(g) of Title VII and seeking back pay, may, 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. We will keep a close eye on district court activity to see how the ramifications from this case unfold.