- The Washington Times - Tuesday, May 30, 2000

The recent flap over Atlanta Braves pitcher John Rocker sent a strong signal that Major League Baseball does not tolerate insensitive remarks. But does baseball tolerate illegal employment discrimination? That question is posed by the behavior of Mr. Peter Angelos, owner of the Baltimore Orioles, the first team owner in the modern era to adopt a policy of invidious employment discrimination. Cuban baseball players need not apply for work with the Orioles.
Mr. Rocker, one may recall, made disparaging remarks about immigrants, gays, and minorities. Baseball responded by suspending Mr. Rocker from 28 games, fining him $20,000, and ordered the player to attend psychological counseling. Although an arbitrator later reduced the penalty to a two week suspension and a five hundred dollar fine, the message was unambiguous: baseball will not tolerate offensive speech.
Baseball's need to express its disapproval of Mr. Rocker can hardly be disputed. An American institution embodying our country's notions of opportunity and fair play can ill afford to be associated with anti-social behavior. Yet as distasteful as Mr. Rocker's comments may have been, at least they were not illegal. Just as baseball retains the First Amendment right to dissociate itself from Mr. Rocker's views, Mr. Rocker enjoys the First Amendment right to express himself freely, however poorly he may choose to exercise that right.
In contrast, baseball has remained silent concerning Mr. Angelos's decision not to hire any Cuban refugees. This policy apparently applies to defecting Cubans, even if they have been living in the United States, have renounced their allegiance to Cuba, and are now naturalized American citizens.
Such a policy plainly violates Title VII of the 1964 Civil Rights Act, which forbids discrimination in employment on the basis of national origin. The reason provided by the Baltimore Orioles purportedly justifying this discriminatory policy is breathtakingly appalling: Mr. Angelos does not wish to encourage baseball players to gain their freedom from Cuba, a Stalinist human rights hell-hole. Says Orioles Vice President for Baseball Operations Syd Thrift, "We Mr. Angelos in particular feel it best to not do anything that could be interpreted as being disrespectful or … encouraging players to defect." At least in theory, Mr. Angelos might be open to hiring Cubans with the blessing of the communist country's government. But stating that he discriminates only against political refugees, as opposed to all Cubans, would not shield Mr. Angelos from Title VII's reach.
Courts analyze Title VII discrimination claims under two legal regimes, termed "disparate treatment" and "disparate impact." Disparate treatment means just what the term suggests: are job seekers treated differently than others on the basis of some forbidden characteristic, such as national origin? It is doubtful that the Orioles seek the permission of any government other than Cuba's prior to hiring that government's citizens.
Under "disparate impact" analysis, courts examine policies and procedures that are neutral on the face to see whether they shield an intent to engage in illegal discrimination. Employment policies that disproportionately burden job seekers of a particular national origin require some business justification. Cuba is the only baseball-playing nation whose citizens are not generally free to emigrate. Thus, a "no defectors" rule would not merely have a disparate impact, but an exclusive impact, upon Cubans. Title VII thus requires Mr. Angelos "to demonstrate that the challenged practice" of requiring Havana's permission to hire Cubans "is job related for the position in question and consistent with business necessity." Mr. Angelos could never satisfy this standard. A baseball player's performance on the field depends upon a variety of factors. Government approval is not one of them. In any event, federal courts do not, as a general matter, permit foreign governments to veto the application of American laws on American soil.
The case against Mr. Angelos is strengthened by the fact that his team previously acknowledged an interest in hiring Cubans. Last year, the Orioles and Cuba's national team hosted each other for a pair of exhibition games, at least one purpose of which was for the Orioles to scout Cuban talent. Not until after Mr. Angelos attended the Havana game with fellow owner Fidel Castro did Mr. Angelos adopt his discriminatory policy. Meanwhile, other major league teams that have not traveled to Havana continue hiring Cuban defectors with good effect.
It remains an open question whether Bill Clinton's Equal Employment Opportunity Commission, the federal agency charged with enforcing anti-discrimination law, will do anything about Mr. Angelos's violation of the 1964 Civil Rights Act. Government records indicate Mr. Angelos has donated $1.215 million to the Democrats since 1995. But Major League Baseball is different. Baseball knows how to police its own, as it did in the Rocker affair. And team owners are not exempt from baseball's good citizenship requirement. Although she did not engage in illegal employment discrimination, former Cincinnati Reds owner Marge Schott was suspended from the game for making racially insensitive remarks.
Mr. Angelos's attempt to keep talented players imprisoned on Castro's gulag island will no doubt fail. So long as Cubans desire freedom and Americans demand great baseball, the defections will continue. But an owner who brazenly violates civil rights laws to discourage players from fleeing tyranny does not exactly comport with the wholesome motherhood-and-apple-pie sort of image that baseball would like to project. Baseball should apply the Rocker Principle to Mr. Angelos.

Alan Gura is an attorney in Washington, D.C.

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