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.

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.

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?

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.