Can Major League Baseball Legally Exclude a Woman?

Today is Stacy Piagno’s birthday. If that name sounds familiar, it’s because Piagno has made some history over the last couple years, becoming (along with outfielder Kelsie Whitmore) not only the first woman to appear on a professional roster in over half a century, but also the first to win a game as a pitcher in roughly that same period of time.

Nor were Piagno’s appearances the product of a mere promotional stunt. After debuting in 2016 for the Sonoma Stompers of the independent Pacific Association, she returned to the team last year, posting a 4.20 ERA, including seven innings of one-run ball against an all-male lineup in a July 15 victory. (The Stompers, you may recall, were the subject of the excellent book The Only Rule is It Has to Work by Ben Lindbergh and Sam Miller.) The Stompers have sent several players to more advanced leagues, including to affiliated ball. Succeeding in that context isn’t a negligible feat.

Piagno and Whitmore (who’s not even 20 yet) are hardly the only women to distinguish themselves on the field against men. The Negro Leagues, which hosted some of the greatest players of all time (Cool Papa Bell, Josh Gibson, Satchel Paige) and which, by some estimates, featured a talent level roughly equivalent to that found in the NPB, also had a number of female players right alongside the men. Toni Stone hit .243, played a competent second base, and is most known for recording her team’s only hit in a game against Satchel Paige. Mamie Johnson posted a 33-8 record and a .276 batting average. (I recognize that pitcher record and batting average aren’t ideal stats, but advanced metrics aren’t really available for a lot of Negro League players.) So there is at least some precedent for women playing capably at a relatively high level.

And there’s more recent history, too. Ila Borders threw over 100 innings across four independent-league seasons between 1997 and 2000. Knuckleballer Chelsea Baker, who dominated her high school (boys’) baseball league, threw batting practice to the Tampa Bay Rays in 2014. And fellow knuckleballer Eri Yoshida held her own across both Japan and North America. There is also a National Women’s Baseball Team and the Japan Women’s Baseball League, and a Women’s baseball world cup.

The issue of women in baseball has already been addressed by writers far better than I. I’m not here to re-cover that ground. I’ve cited women’s history in the game, though, simply to establish both that women have exhibited both (a) a desire and (b) sufficient skill to play it professionally. (More on that latter point below.) What I’d like to do here is address the possibility that women have been excluded from the game — both as players and umpires — for reasons other than merit. And while I’m not the first to write about this, I’d like to take the opportunity of Piagno’s birthday to propose a legal theory by which women could potentially play affiliated baseball.

Technically, there’s no current rule banning women from playing or umpiring. In 1952, Major League Baseball actually did ban women from playing for any major-league or affiliated minor-league team.  The ban was withdrawn 40 years later, and Melissa Mayeux became the first woman on MLB’s international registration list. But here we are, in 2018, and there will be no women on any MLB baseball field this year. Not in the majors, not in the minors. Not as players, not as coaches, and not as umpires. [Edit: thanks to commenter Wishy2 for pointing out my inadvertent omission of the only female minor league umpire, Jen Pawol, currently working in the short-season Penn League.] And not for lack of trying, either: as late as 2007, there’s evidence that male umpires were colluding to keep Ria Cortesio from becoming a major-league umpire.

The applicable law here is Section 2000e-2 of Title VII of the Civil Rights Act of 1964, which specifically states that “It shall be an unlawful employment practice for an employer

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”

What that means is that an employer can’t refuse to hire a woman simply because she’s a woman.  There’s also the case of United States v. Virginia, where the U.S. Supreme Court held that the Virginia Military Academy couldn’t refuse to consider women as candidates so long as it was possible that some women met the physical qualifications for entry.

Generally, people who argue that teams are allowed to hire only male players point to something called a bona fide occupational qualification (“BFOQ”). A BFOQ is a very long and obscure way of saying that an employer is allowed to exclude people on the basis of criteria like gender if being a specific gender is required to do the job. For example, if Hanes needed a male model for its underwear, they’re legally allowed to look for men only to fill that role. Race, it should be noted, can never be a BFOQ.

We know, for example, under a 1971 case called New York State Division of Human Rights v. New York-Pennsylvania Professional Baseball League, that being male is not a BFOQ for being an umpire, which means an umpiring candidate cannot be turned away because of her gender. In fact, 10 years ago, an all-female crew umpired an exhibition game between the Mets and Michigan Wolverines. So any collusion against Cortesio was almost certainly illegal, particularly because Cortesio was a good prospect, umpiring both a major-league spring training game and the Futures Game. If a woman wants to be an umpire, baseball can’t legally refuse to hire or promote her because she’s a woman.

So now the question is whether being male is a BFOQ for playing professional baseball.

There is, on average, a disparity in strength between men and women. According to this excellent research by Bradley Woodrum, the difference in talent between male and female athletes is about 10%. That’s actually pretty sizable: a 90 mph fastball becomes an 81 mph fastball. So the question we’re addressing is whether that 10% difference is enough to make being male a BFOQ for a baseball player. And that depends on whether there are women who are talented enough to play.

Let me emphasize that final sentence for sake of clarity: at the moment, there are no women playing professionally at any level of affiliated baseball. Not Triple-A, not Double-A, not in the Rookie-level Arizona League. All told, there are roughly 6,500 players throughout the minors and majors combined and none of them are women. It seems improbable that not even a small percentage of women could outplay all of those 6,500 male players.

To go beyond probability and find the reality of the situation, I spoke with Hardball Times writer Jen Mac Ramos. I’m a decent enough lawyer, but my scouting abilities leave much to be desired. Ramos, on the the hand, has already conducted groundbreaking research which found that women are fully capable of playing catcher in affiliated baseball leagues. That’s because, according to Ramos’s research, the offensive bar for catchers is lower, and catcher defense — specifically pitch-framing — isn’t something men do better than women. Ramos also told me that their research shows that women could be good middle infielders in the mold of David Eckstein and Jose Altuve, who excelled despite smaller frames. And Ramos explained that female pitchers already exist who could get by in the pros throwing 83-85 mph, pointing to Jamie Moyer and Jered Weaver as examples.

Most importantly, Ramos told me that women players and women’s leagues simply aren’t scouted by MLB teams, largely due to a structural belief in front offices that they aren’t good enough. Simply put, explained Ramos, “these women don’t even come close to a lot of front offices’ radars.” But Ramos was emphatic when I asked them whether there are women players good enough today to play affiliated baseball, at least in the minor leagues. “Yes,” they said.

I also spoke to Kazuto Yamazaki, an NPB specialist and writer for Pitch Info and Beyond the Box Score. Yamazaki told me that there are players in the Japan Women’s Baseball League who “could thrive in the Pacific Association or the [Frontier League].” The Frontier League, it should be noted, is estimated by some equivalent to Low-A ball. He did say, though, that JWBL players would likely have difficulty with velocity at higher levels.

Given this evidence, it seems remarkable that MLB appears not to scout women at all. And that, in and of itself, may not be legal under Title VII, because MLB is basically excluding an entire population from consideration solely on the basis of their gender.

That’s not to say that a lawsuit by a female player against MLB would be without problems. First, minor leaguers aren’t technically employees for wage purposes under the Fair Labor Standards Act, and thus there would be a plausible argument they aren’t employees under Title VII either. But that might not be an insurmountable obstacle because the carve-out for recreational workers in the FLSA that applies to minor-league wages is specific to just that and isn’t present in Title VII. The Supreme Court tells us in National Federation of Independent Business v. Sebelius that where Congress uses different statutory language, it’s presumed that Congress did so on purpose. In fact, in a case called Moran v. Selig, the court applied Title VII to a case filed by a former player against Major League Baseball (even though he eventually lost on the merits).

Then there is the legislative history of Title VII, which actually mentions some legislators suggesting an all-male baseball team as an example of something permitted by Title VII. However, that kind of legislative history is not dispositive. That’s because the language of the statute is considered to be the primary indicator of the intent of the legislature and the use of legislative history is, shall we say, controversial. The language of Title VII desn’t have language which, on its face, would exclude baseball teams.

There’s also MLB’s defense to the recent lawsuits by minor leaguers over wages. Rob Manfred has, in response to that suit, said that baseball considers minor leaguers to be serving “apprenticeships.” But EEOC v. Seafarers International Union established that apprentices are employees for the purpose of statutes like the Age Discrimination in Employment Act (“ADEA”), and the same reasoning could be applied to Title VII.

You’d also have to have a plaintiff who is talented enough, because MLB might reasonably say that they won’t scout players who they think will top out at Low-A ball. Players in foreign leagues would probably not have standing to sue under Title VII at all. All of which indicates that this wouldn’t be an easy case.

Nevertheless, with all that said, I think there is a real possibility that, if a female player were to bring a Title VII class action against MLB, she’d have a viable case.

Special thanks to Jen Mac Ramos and Kazuto Yamazaki for their help.