What baseball can teach us about anti-discrimination law.

The law, lawyers, and the court.
June 5 2006 6:26 PM

Junk Bonds

What baseball can teach us about anti-discrimination law.

(Continued from Page 1)

Price Waterhouse v. Hopkins, the case that established mixed-motives analysis, involved a woman who had been passed over for partnership at a large accounting firm. She had done good work for the firm and had hit a home run by landing a large contract the year she was up for promotion. But she had a bad personality: She was rude to coworkers, abrasive, difficult—sound like any major league sluggers you know? The firm said she was passed over because of her poor interpersonal skills. She said the reason was her sex: There were very few female partners at the firm, and some partners had made sexist comments about her, including calling her "macho" and telling her to wear makeup and jewelry and go to charm school. So, was she passed over because of her sex or because of her abrasive personality?

The Supreme Court disagreed about how to sort this out: In fact, the court split four ways, with four justices in a plurality, three in dissent, and each of the remaining two writing separate concurrences. The upshot of the plurality opinion, however, was that if the employee can show that bigotry played a role in the decision, she might have a case. At that point, the employer can get off the hook only by showing it would have made the same decision even if bigotry hadn't been in the mix. Mixed-motives cases are tough because they often involve unsympathetic victims and ambiguous facts. It's hard to feel moral outrage on behalf of a wrongdoer or a troublemaker, even when they might also be victims of bigotry. And it's easy for bias to hide out in a crowd of good reasons that might justify the outcome. Making the right call in a mixed-motives case requires resolving conceptual puzzles and parsing obscure hypotheticals: Did the good reasons alone "justify" the decision? Would the decision have been the same even if no bigotry had been involved?

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Would the press have hounded and fans booed a surly white steroid user closing in on Babe Ruth's career record? Obviously, there are no simple answers to such questions. So it's no surprise that the question of anti-Bonds sentiment is as controversial as the infield fly rule.

As the split on the Supreme Court suggests, even the most experienced umpires can't agree on how to resolve such issues. The split also suggests that the differing answers involved the justices' personal ideological divisions as much as factual ambiguities. Just as sports fans reflexively back their favorite team on close calls, when the facts surrounding a claim of racism are inscrutable or ambiguous, people tend to fall back on ideological predispositions. Saying Bonds is a victim of racism becomes a way of saying racism is still a serious problem in our society. Saying he's just bellyaching becomes a way of saying too many black people are playing the race card.

Team spirit is good sport at the ballpark after a few beers, but it's foul play when it comes to race relations. So, I'll to try to resist my home-team liberal reflexes and call the Bonds controversy as I see it: I think racism remains a serious social problem, but I don't see much evidence of it here. When a black person is treated badly for no good reason, it's reasonable to suspect the reason was race. But this inference can't be justified when there is a good reason; then we need some other evidence that bias was a significant factor—like the evidence that partners at Price Waterhouse said Ann Hopkins was too "macho" and needed to be more feminine. And we don't have that kind of evidence here.

Bonds is right to say that blacks "go through a little more" because some people are racists: Hank Aaron was deluged with explicitly racist hate mail and death threats and needed police protection in the dugout as he closed in on Babe Ruth's record. No doubt some of those bigots are still out there, and unfortunately, new ones have been spawned since. Things have improved since the 1970s, but we haven't beaten racism yet. However, this general observation can't be enough to support a specific claim of bias in this case, just as workplace sexism generally wouldn't have been enough to support Ann Hopkins' claim that Price Waterhouse discriminated against her. Without more to back it up, the claim that Bonds is a victim of racism is just speculation. We can't assume that anytime a black person is treated badly we can or should blame racism—especially when he's done something to provoke the abuse.

The legal rules aren't perfect or infallible—because the accuser has to prove discrimination, they almost certainly miss some cases of bias where's there just not enough evidence—but they do offer a systematic way of thinking through claims of bias and of determining when it's reasonable to infer bigotry from circumstances. And in an environment where most claims of racial bias require close calls, that's as near as we're likely to get to a replay on Diamond Vision.

Richard Thompson Ford teaches at Stanford Law School. His latest books are Rights Gone Wrong: How Law Corrupts the Struggle for Equality and Universal Rights Down to Earth.

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