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.

Barry Bonds. Click image to expand.
Barry Bonds

Barry Bonds officially "broke" Babe Ruth's home run record over Memorial Day weekend. I put "broke" in scare quotes because, of course, that record hadn't been in one piece since 1974, when Hank Aaron broke it. Some baseball fans didn't want Aaron to break the Bambino's record—he received threats and hate mail from bigots who wanted to send black players back to the separate and unequal Negro Leagues.

More than 30 years later, with Bonds nearing Babe Ruth's career record, as many fans jeered as cheered. Bonds reports receiving threats and hate mail on a regular basis. And the press has not exactly written love letters. Is Bonds as much a victim of racism today as Aaron was in 1974? Anti-discrimination law offers a way to think about the question.

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Bonds himself thinks fans have it in for him for racial reasons "because Babe Ruth is one of the greatest baseball players ever and Babe Ruth ain't black. I'm black. Blacks, we go through a little more, and that's the truth." Others agree. Torii Hunter of the Minnesota Twins insisted in a USA Today interview, "It's so obvious what's going on. … It's killing me because you know it's about race." Danny Glover similarly mused on ESPN's Bonds on Bonds program: "I'm surprised the black community hasn't come out and made a statement about this." And Louisiana State University Professor Leonard Moore insists things are actually worse than when Hank Aaron was at bat: "White America doesn't want him to [pass] Babe Ruth and is doing everything they can to stop him. … I think what he'll go through will be 100 times worse than what Aaron went through."

There's one problem with this Bonds/Aaron comparison: No one thought Aaron had cheated. Bonds, on the other hand, is widely believed to have used performance-enhancing steroids—a belief backed up by evidence as unambiguous as a pair of 16-inch biceps, leaked testimony from a federal grand jury, and documents seized from the founder of the Bay Area Laboratory Co-operative, where the steroids were made, and from Bonds' former trainer. And while fans and the press might give a smooth-talking charmer the benefit of any doubt, Bonds isn't exactly Mr. Congeniality: He's notorious for snubbing fans and teammates alike, fuming and brooding in the dugout, and refusing to sign autographs.

So, maybe jeering fans are really angry not because a black man surpassed Babe Ruth's record but because a surly, arrogant jerk used steroids to pass Babe Ruth's record. Most of the people who have weighed in on the controversy assume it has to be either one or the other. But maybe it's some of both. Is there a way to tease out the real motives here?

This is a complicated inquiry, in part because there are no fans shouting racial epithets, wearing white hoods, or burning crosses at Giants games. Instead, they're shouting "cheater" and holding up signs about BALCO. Modern racism, unlike the blatant racism of the Jim Crow era, is usually covert. Few people will admit to racist motivations—even to themselves. So, we have fewer and fewer cases where the evidence of racism is unambiguous, and more and more where we have to smoke out concealed discriminatory motives. Is it fair to surmise that many fans who claim to be put off by steroids are really put off by skin color?

Civil rights law has developed a way to deal with these subtler cases. Some involve an either-or question. Suppose a black employee is overlooked for a promotion. Either the employee was not promoted because of race or she was not promoted for a legitimate reason. The employee bats first: She has to show it's plausible that she was the victim of discrimination. She can do this by eliminating the most obvious good reasons she might have been passed over —she wasn't qualified, or the position she wanted was eliminated or had already been filled. If she does this she's on base, but it's not a run yet. The employer now has a chance to respond that he was motivated by a legitimate reason—say, the employees' bad attitude or alleged steroid use.

At this point the employee can still score if she shows that the legitimate reason offered by the employer is a "pretext," and that the real motivation is race. The rules of the game thus let us establish discriminatory motives by process of elimination: If we eliminate all of the legitimate reasons, we can deduce that the reason must be unlawful bias. We call these "single motive" cases because the proof structure is based on the presumption that there's only one true motive: Either it's a good one or a discriminatory one.

Bonds doesn't have much of a single-motive case. His notorious surliness, combined with the steroid scandal, are good, nondiscriminatory reasons for fans to hiss and jeer rather than clap and cheer. Of course Bonds might argue that steroids and personality are mere pretexts—the real reason fans and the press don't like him is race. But no doubt a lot of people are sincerely upset about the steroid scandal. When someone cheats, fans are justified in feeling, well, cheated. The "pretext" pitch is outside the strike zone.

But what if fans dislike Bonds because of his personality, or the steroid scandal and his race? Maybe they'd be willing to overlook the same flaws in a white player. In the law we'd call this a claim of "mixed motives." Here, a legitimate reason for the decision isn't enough to end the game; the employer still can be held liable for discrimination if bigotry was also in play.