The Legal Ramifications of Racist Umpiring

Earlier this month, a groundbreaking study from Hank Snowdon of Claremont McKenna College found a small but statistically significant racial bias in how umpires call balls and strikes. Simply put, white umpires give white pitchers more favorable strike zones than non-white pitchers. As Snowdon wrote based on his findings:

Overall, umpires exhibit pitcher favoritism when their race matches the pitcher’s, and batter favoritism when their race matches the batter’s. Further, the time trend analyses suggest that the biases do not meaningfully decrease in size or significance throughout the sample. It also appears that the biases are largely driven by White umpires, while Hispanic umpires exhibit slight evidence of discrimination against Hispanic players, and discrimination shown by Black umpires is largely minimal or insignificant depending on the specification. These results, along with the fact that most MLB umpires are White, indicate that White players benefit the most from umpire discrimination in MLB.

The idea that white umpires discriminate against nonwhite players is hardly surprising. Although it’s possible (or even likely) that some of this discrimination is conscious or deliberate on the part of umpires, it’s entirely probable for people - especially white people - to exhibits unconscious racist behaviors and discrimination.

For years, social scientists have been aware of the existence of implicit racial biases. The brilliant Jenee Desmond Harris explained it this way:

The first step in understanding how implicit racial bias works is to understand the general concept of implicit bias, which can shape the way we think about lots of different qualities: age, gender, nationality, even height.

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What do these “blind spots” look like, and how do they shape behavior? Well, if you have a stereotype about Asian people that labels them as “foreign,” implicit bias means you might have trouble associating even Asian-American people with speaking fluent English or being American citizens. If you’ve picked up on cultural cues that women are homemakers, it means you might have a harder time connecting women to powerful roles in business despite your conscious belief in gender equality.

Biases are not benign simply because they are implicit, however, as the American Journal of Public Health explained:

Within the general population, significant research exists about implicit racial/ethnic bias. For example, White Americans have tended to associate negative valence in general, and certain feelings such as fear and distrust, with Black Americans. Such group notions are automatically activated and applied most often when people are busy, distracted, tired, and under pressure. The cognitive effort to assess and process a person’s individual characteristics appears to be greater than that required to quickly categorize a person into a particular group with particular characteristics. Such short cuts in thinking may be useful in certain situations, but when providers are seeking to establish genuine working relationships with their patients and deliver equitable health care, fast thinking or quick categorization may get in the way. For example, during a diagnostic examination with a Black American adolescent, a [medical] provider may automatically presume that they are sexually active rather than asking open-ended questions about sexual activity and listening carefully to the responses.

Given studies showing racial bias impacts how referees officiate in the NBA and Major League Soccer, among others, it would be foolish indeed to assume that white baseball umpires are immune to the vagaries of implicit bias. Indeed, as this study noted, racial bias permeates across sports officiating, not just MLB.

Pope and Pope (2015) found that referees, regardless of experience, were biased in favor of players from their native country. Price and Wolfers (2010, 2012) reported that more personal fouls were called against players when opposite-race crews were officiating compared to when own-race crews were officiating, showing that referees tend to call more fouls on players of another race and disputing claims from the NBA that referees did not show bias.

As such, Snowdon’s work is consistent with what we know both about the attitudes of white Americans generally and refereeing across professional sports in North America. In fact, Snowdon is not the first to reach these conclusions; nearly 15 years ago, a different study reached an almost identical result.

According to a new study by Daniel Hamermesh, a professor of economics at the University of Texas at Austin, Major League Baseball umpires tend to call more strikes when the pitcher is of their same race; when they’re not, umps call more balls. It doesn’t happen all the time — in about 1% of pitches thrown — but that’s still one pitch per game, and it could be the one that makes the difference. “One pitch called the other way affects things a lot,” says Hamermesh. “Baseball is a very closely played game.” What’s more, says Hamermesh, a slight umpire bias affects more than just the score; it also has an indirect effect on a team’s psyche. Baseball is a game of strategy. If a pitcher knows he’s more likely to get questionable pitches called as strikes, he’ll start picking off at the corners. But if he knows he’s at a disadvantage, he might feel forced to throw more directly over the plate, possibly giving up hits.

It’s a fairly safe assumption, then, that Snowdon and Hamermesh are correct: there is a real, statistically significant, and measurable racial bias among white umpires in Major League Baseball. That it is small does not make it a minor problem; racial discrimination is not acceptable just because you only discriminate a little bit.

Of course, race-based discrimination isn’t just immoral and wrong - it’s also illegal.

What Snowdon and Hamermesh have found is what we call in the law “disparate impact” - that is, a rule or policy which is not facially discriminatory, but becomes discriminatory through its application or enforcement. What is important to note about disparate impact is that it does not require that a person have actual malice towards a marginalized group or intent to discriminate. Indeed, in two cases well known to attorneys - Teamsters v. United States and McDonnell Douglas Corp. v. Green - the U.S. Supreme Court expressly held the opposite:

[Disparate Impact] involve[s] employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive, we have held, is not required under a disparate-impact theory.

Applying a rule more leniently to one group of employees than another - like, for example, a rule of balls and strikes - is almost certainly a violation of the law under disparate impact theory, even though the strike zone is inherently subjective. Under a case called Watson v. Fort Worth Bank & Trust, the U.S. Supreme Court held that the unequal application of a subjective rule is an unlawful employment practice under disparate impact theory:

If an employer’s undisciplined system of subjective decisionmaking has precisely the same effects as a system pervaded by impermissible intentional discrimination, it is difficult to see why Title VII’s proscription against discriminatory actions should not apply. In both circumstances, the employer’s practices may be said to “adversely affect [an individual’s] status as an employee, because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e-2(a)(2). We conclude, accordingly, that subjective or discretionary employment practices may be analyzed under the disparate impact approach in appropriate cases.

Disparate impact has become more controversial among certain political groups in recent years because it does not require a discriminatory motive. That said, disparate impact remains good law in the United States, and that is a good thing. Criticism of disparate impact litigation focuses on the idea that people should not be punished for unconscious biases they may not know they have, but the problem with that argument is that it ignores the very real veritable mountain of data that shows that these unconscious biases exist and have very real, very deleterious effects. As Justice Anthony Kennedy wrote for the Supreme Court several years ago,

Recognition of disparate impact liability . . . also plays a role in uncovering discriminatory intent: It permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.

The question, as Kennedy was pointing out, is that someone must bear the costs of unconscious prejudice and bias. Should it be the person who is harmed by those biases, or the person whose biases are causing the harm? The answer is obvious, and has the added benefit of incentivizing people with unconscious biases to do the work necessary to dismantle those biases.

The point here is not necessarily that the MLBPA or a player of color should file a grievance or take other legal action, although there may well be grounds for doing so, and such action would be well taken. Rather, with the current CBA expiring in a matter of weeks, it is incumbent upon the league to do a better job of complying with Title VII of the Civil Rights Act throughout Major League Baseball. The decline of Black players in MLB is due to several factors, but things like this are almost certainly a part of it.

Sheryl Ring is a consumer rights and civil rights attorney practicing in the Chicago, Illinois area. You can reach her on Twitter @Ring_Sheryl. This post is for informational purposes only and is not legal advice, and does not create any attorney-client relationship.