Human rights complaints against Cleveland baseball team name and logo get creative
Oct 25, 2016
As we reported on October 18, 2016, two human rights applications were filed by Douglas Cardinal against Rogers and Major League Baseball (“MLB”). The applications assert discrimination based on the Cleveland team name, the Cleveland Indians, and the team logo, the graphic image commonly known as the Chief Wahoo (the team also sometimes uses a letter “C” as shown in the attached image).
One of the claims is that Rogers and MLB published signs or symbols intended to incite discrimination contrary to section 13 of the Ontario Human Rights Code (the “Code”). Section 13 is a rarely used part of the Code and the decision to rely on it is an interesting one.
Unlike the average discrimination claim, section 13 requires analyzing a respondent’s intentions (i.e. whether a respondent intended to incite discrimination). Intentions are a tricky thing to prove because a respondent rarely admits wanting to discriminate. We also rarely now see the type of explicit racial discrimination where a business openly bans certain people based on race.
Because of this complexity, Mr. Cardinal argues that the focus should not be on whether Rogers and MLB wanted to incite discrimination by using the Cleveland name and logo, but whether, regardless of desire, it was reasonably foreseeable that using the name and logo would incite discrimination. Mr. Cardinal claims that reasonable foreseeability is made out:
“The continued presence of racist symbols in society, in and of itself, fuels additional racism. Most importantly, such symbols normalize racist conduct by others. When a Major League Baseball [. . .] team attracting millions of viewers uses a racist symbols [sic], others come to believe that such racism is acceptable. The Name and the Logo perpetuate the historical disadvantage suffered by Indigenous Persons by using them as a historical caricature.”
In considering Mr. Cardinal’s argument, the Human Rights Tribunal of Ontario (the “Tribunal”) will consider the other cases, though limited, where section 13 was alleged.
For instance, in Entrop v Imperial Oil Ltd, the Ontario Court of Appeal concluded that the good faith implementation of a policy on alcohol and drug testing was inconsistent with an intent to discriminate. By focusing on the employer’s “good faith”, the Court adopted an interpretation of intention that is more in line with the type of reasoning that Mr. Cardinal is trying to avoid.
On the other hand, Mr. Cardinal may find support in Bowater v Communications Energy and Paperworkers Union of Canada. In Bowater, Arbitrator Roberts concluded that “regardless of the true intention of the employer” the job posting language in question set out a threshold level of physical health without regard to accommodations. Accordingly, in finding a violation of section 13, Arbitrator Roberts drew a distinction between what the employer may have intended and how it was reasonably received.
Ultimately, this part of the case will likely turn on whether the Cleveland team’s name and logo are sufficiently offensive on their face that Rogers and MLB should have known that they would incite discrimination. Given the limited case law decided under this section, the Tribunal’s decision is difficult to predict. Regardless of the outcome, the Tribunal’s interpretation of “intention” will likely dictate how widely section 13 of the Code is used going forward.
By Mika Imai; photo by Keith Allison (Flickr) used under cc license
Believe it or not, no one is trying to punish the Cleveland baseball team
Oct 18, 2016
Behind Douglas Cardinal’s failed injunction against the Cleveland baseball team, there is a human rights complaint. Two, actually. And those complaints will proceed in very different environments than what took place in Ontario Superior Court on October 17. As was made clear yesterday, the complaints allege that the name of the Cleveland franchise and their Chief Wahoo cartoon logo are discriminatory.
While it may not always seem this way, human rights regimes in Canada are intended to be ameliorative and remedial, not punitive. This principle prioritizes outcomes over blaming and finger-pointing.
It may seem like legal hair-splitting, but as a practical matter, this principle can really shape cases – sometimes for the better, sometimes for the worse.
For defendants like the Cleveland baseball team, the remedial principle removes a possible defence: lack of intent to discriminate. The Tribunal has been really clear that the respondent’s intent isn’t relevant, and that’s perfectly in keeping with the legal system more broadly. In order to punish a person, courts at least theoretically require some proof of moral culpability. However, when the law is merely trying to correct some harm — which is the case in many civil suits — intent will usually play only a secondary role, if at all.
On the other side of the coin, for applicants like Mr. Cardinal, the challenge will often be to prove a harm. And the key word is “prove”: the onus is on the applicant. Here, there is no doubt that racism toward Indigenous people is a major problem in both Canada and the U.S., and that it results in real and measurable harms. The more difficult part of the case will be to connect Cleveland’s name and logo to the downstream harms.
The remedial principle has other practical consequences for this case and others. Notably, compared to many American suits, the amount of money awarded by Canadian tribunals is usually very modest. Human rights awards are not intended to be punitive, and rarely does the Tribunal award more than five figures to an applicant.
Instead — and this is likely to strike fear into the heart of Cleveland’s front office — the Tribunal is more free than a Court to make specific orders about conduct going forward. Such orders could involve mandatory training, posting information publicly, and, yes, forbidding the logo to be used on the field here in Toronto.
Bottom line: the decision to proceed in Canada before human rights tribunals is inevitably going to shape how the case is litigated. Whether or not you think that Cleveland ought to be punished, it’s simply not the focus of the next stage in the litigation.
Symes Street & Millard specializes in employment and human rights law and has represented parties in many cases both inside and outside of the courtroom.
Photo by Erik Drost (Flickr) used under cc licence