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.

We hoped you liked reading Can Major League Baseball Legally Exclude a Woman? by Sheryl Ring!

Please support FanGraphs by becoming a member. We publish thousands of articles a year, host multiple podcasts, and have an ever growing database of baseball stats.

FanGraphs does not have a paywall. With your membership, we can continue to offer the content you've come to rely on and add to our unique baseball coverage.

Support FanGraphs




Sheryl Ring is an attorney and General Counsel at Open Communities, a non-profit in the Chicago suburbs. You can reach her on twitter at @Ring_Sheryl. The opinions expressed here are solely the author's. This post is intended for informational purposes only and is not intended as legal advice.

newest oldest most voted
sportsfreak2744
Member
sportsfreak2744

Wouldn’t women have to, I don’t know, play baseball for this to be a thing? Name a female baseball player that you would sign right now.

This seems to fall under the “Going Out of One’s Way to Be Offended” category

sportsfreak2744
Member
sportsfreak2744

And I’m already down-voted… but no name given! Shocking.

HappyFunBall
Member
HappyFunBall

I down voted you. Both posts. Happy now?

sportsfreak2744
Member
sportsfreak2744

No, you didn’t name a player.

seprotzmann
Member
seprotzmann

I down-voted you. If you read the article, there are plenty of women playing baseball, MLB teams just aren’t paying attention

sportsfreak2744
Member
sportsfreak2744

“He did say, though, that JWBL players would likely have difficulty with velocity at higher levels.”

Also,

“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”

How is this inspiring anyone to rush out and sign someone?

seprotzmann
Member
seprotzmann

The piece isn’t advocating an MLB team sign a woman and put her on the 25 man. It is, however, asserting that there could be women playing baseball, as you doubted, who are better than some of the 6,500 male players in affiliated ball. It’s a very simple concept

sportsfreak2744
Member
sportsfreak2744

I’m not talking about the 25 man. I’m talking about any level.

ballz1220
Member
ballz1220

Teams invest in players to get them to the majors. You know that right? If a woman could play in the majors they would sign her

Jetsy Extrano
Member
Jetsy Extrano

Teams sign far more professional players than will ever make the majors. They sign people who they’d be shocked if they ever did made the majors. They’d rather have stars, for sure, but they need org players too.

Every player they sign is a lottery ticket for the majors, yes, but some are so unlikely that you can identify /most/ of their value comes from being just who they are, org players.

Heck, teams sign 30-year-old minor league free agents to minor league deals. That’s because they need minor league players, not because they hope to strike gold.

Org players aren’t exciting, and frankly I wouldn’t sign up for that job, but if some women would, why shouldn’t they beat out Argenis Raga to catch in A ball?

RealCarlAllen
Member

Name one female who you believe is better than Argenis Raga

jfree
Member
jfree

Ever more significant – EVERY draftee is an org player until they demonstrate they aren’t. The difference is – drafting a guy generates no interest at all, drafting a woman would immediately generate far more fan interest than say Tebow or Russell Wilson. And that interest would percolate through their entire minors system – and down through to girls youth baseball.

Seems pure cowardice to me that an MLB team hasn’t already done this.

RealCarlAllen
Member

It’s almost as if teams draft and sign players mostly on merit and not as publicity stunts.

I’m sure some A-ball teams would generate interest if they signed Justin Bieber, too.

jfree
Member
jfree

It’s almost as if teams draft and sign players mostly on merit and not as publicity stunts.

Teams draft their coach’s kids – eg Carey Schueler (who isn’t mentioned in this article) was drafted by the CWS in 1993 (when the 40 year formal legal ban ended) when Ron Schueler was their GM – and she was a basketball player. They regularly draft a dozen or so players every year who they have no intention/expectation of signing (and don’t sign) so the opportunity cost to them is NOTHING.

Just because a team would also get favorable publicity (and revenue) does not mean it would be a mere ‘stunt’. And it’s a hell of a lot better than nepotism. The only way to see whether they can play is – to play them. Internet comment boards are not evidence of squat.

And I repeat – MLB teams are COWARDS for not doing this in the 25 years now that they could have done it. Go ahead downvote me. You still know it’s true.

RealCarlAllen
Member

“the only way to see whether they can play is – to play them”

Then these dumbass teams investing in “scouts” are wasting a lot of money!

“They regularly draft a dozen or so players every year who they have no intention/expectation of signing (and don’t sign) so the opportunity cost to them is NOTHING…And I repeat – MLB teams are COWARDS for not doing this in the 25 years now that they could have done it. ”

So you want them to draft a woman with no intention of signing or playing them? That’s what you’re looking for out of this?

Las Vegas Wildcards
Member
Las Vegas Wildcards

That’s pure conjecture, because men have significant physical advantages when we’re talking about playing sports. Serena Williams is the GOAT female tennis player, and she would be crushed playing the 500th ranked men’s player. The UConn women’s basketball team would be easily defeated by any men’s NAIA program. Stacy Piagno has an ERA over 6 in this low level independent league, she has zero chance of advancing to affiliated pro ball.

Curtis Cook
Member
Curtis Cook

I disagree with both of your first two contentions. Sarina could win on a regular basis against men in the back half of the top 100, and the UConn women could beat over half of the NCAA Division III teams… and a few from Division I.

For all of the posters here who keep repeating ‘name one woman who could’, the point of the article is that we can’t name them because we can only name people who get scouted and women aren’t scouted.

In my opinion the biggest reason women aren’t playing baseball has nothing to do with talent and everything to do with softball. Since at least the 1920s softball has been used as a ghetto into which women are relegated so they can’t compete in baseball. Back in 1978 our high school administration (Carthage Central, New York State) ruled with a straight face that softball was the equivalent of baseball, so boys couldn’t play on the softball team and girls couldn’t play on the baseball team because each gender already had a sport that was the equivalent of the other.

RealCarlAllen
Member

“In my opinion the biggest reason women aren’t playing baseball has nothing to do with talent”

There is not a single female in the world who meets the bare minimum criteria of “throws hard enough” and/or “runs fast enough” and/or “hits the ball well enough” to even merit scouting. Once one does, she will get scouted. These skills are PREREQUISITES to success, not guarantees of it, and not a single female to date has met them. I hope one does, but to pompously assert they’re just being ignored is disingenuous. It is absolutely a talent issue – more specifically – a biological disadvantage.

As for the baseless assertion that the Uconn women could beat some division 1 male teams…I’d like you to name a specific team on the division 1 level they could beat, so I can show you how silly of a matchup it would be.

ballz1220
Member
ballz1220

They aren’t paying attention because none of them are performing at a level that could ever get them to MLB

RealCarlAllen
Member

Or A ball.

RealCarlAllen
Member

MLB teams aren’t paying attention to a lot of people. Why? Because they aren’t good enough. Nothing to do with gender. If a girl is throwing 90+ by the age of 20, or consistently hitting the ball with 90+ exit velo, then maybe you can feign some more outrage.

They seriously cited a girl who threw 15 innings with a 4.20 ERA in the Frontier League and are outraged she’s not getting a contract. She could be LITERALLY THE BEST pitcher in the Frontier League (she’s not) and that would STILL not merit more than passive look.

LGuapo
Member
LGuapo

Since you’re accusing people of reading way too much into way too little, would you like to defend your use of the word “outraged” here as it relates to the article? Or are you just being intentionally hyperbolic in order to make the person you’re arguing with appear unhinged and, therefore, unreliable?

RealCarlAllen
Member

Anyone who is trying to cite legal precedent to make a case against the MLB for not signing a woman to play, on the basis of “there’s a female who won one game in the Frontier League!”

Doesn’t need my help to appear unreliable.

DoubleHaul
Member
Member
DoubleHaul

Nobody is “feigning” or demonstrating or expressing ideas in any manner that would even remotely suggest outrage, except for a truly depressing number of the commenters.

RealCarlAllen
Member

Again, citing legal precedent for a gender-based discrimination lawsuit on the grounds of “woman aren’t being signed but one has won a single game in the Frontier League” suggests some highly irrational outrage.

terry mesmer
Member
terry mesmer

> highly irrational outrage.

You are arguing against something that happened only in your mind, jackass.

RealCarlAllen
Member

Why do you think they aren’t paying attention?

For the same reason they aren’t paying attention to 99% of the other players in the Frontier League.

JSJohnSmithAnon
Member
JSJohnSmithAnon

She actually had the 4.20 ERA (and a 9 ERA and 12 RA/9 the year before) in the Pacific Association, which I’m pretty sure is a much lower quality of play than the Frontier League.

RealCarlAllen
Member

Who is the best pitcher in the Pacific Association? Is that individual being scouted? Why not? *outrage*

tb.25
Member
tb.25

“hey, an industry that likely has excluded a gender based on assumptions and stereotypes needs one of those genders playing before that gender can sue about exclusionary tactics.”

See the backwards thinking in that..?

Bret
Member
Bret

the fact that you’re being downvoted for this is bewildering

frangipard
Member
frangipard

No, it’s not backwards reasoning, since “MLB-affiliated baseball” and “all baseball everywhere” are not the same thing.

High school, college, and the independant leagues are three viable routes to the majors, where players demonstrate the skills required to interest MLB teams. There are no women in any of them coming even remotely close to showing those skills.

Brad Johnson
Member

Did you… read the article?

Rex Manning Day
Member
Rex Manning Day

Why are people like you always somehow the first to see posts like this.

Doug Lampert
Member
Member
Doug Lampert

Reading the article and generating a thoughtful comment takes time.

sportsfreak2744
Member
sportsfreak2744

“People like you”

I apparently committed wrong think.

Rex Manning Day
Member
Rex Manning Day

The term is “thoughtcrime.” If you’re going to make a wildly hyperbolic literary allusion, at least make it correctly.