Friday, June 09, 2006

Baseball and Antidiscrimination Law

A wonderful article from Slate emphasizing employment discrmination concepts such as "pretext" and "mixed motive" discrimination--- "Junk Bonds: What baseball can teach us about anti-discrimination law":

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. Is Bonds as much a victim of racism today as Aaron was in 1974?

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."

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.

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?

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.

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.

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. Wecan'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.

This article is too good for words, a sort of bastard love child of my great passion (antidiscrimination law) and inexplicable interest (I come from a family of basketball freaks). You have to wonder though--do white players get as much heat for their alleged steroid use? Do new fathers get short-shrifted at work as much as new mothers? How much do stereotypes about gender or race affect how the employee's performance is perceived? Do we have different expectations for members of certain races or genders, such that when the members do not perform to our expectations we treat them differently than other groups? If a woman handles a client with professionalism and courtesy but lacking a demure manner, is she evaluated based on such stereotypical expectations? Is a man allowed to be more abrasive or outspoken? Is any transgression by a black or latino employee treated more harshly than someone in the good ol' boys network?

Mixed motive analysis is terribly complicated, as is any exercise in going from the general to the specific. Even the exercise of distlling from articulated stereotypes a pattern or practice of discrimination against a particular individual is difficult, and that's with a few smoking guns. It's not a perfect legal system, and in fact I have several criticisms of the perpetrator-victim model of anti-discrimination law. General societal discrimination is not actionable, and neither is it proof of individual discrimination---a good and yet bad thing. On the one hand, it minimizes litigation and makes managable the idea that racial wrongs (individual, provable) can be righted. On the other hand, it leaves a lot of people, and a lot of racism, without remedy.