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October 25, 2016

Human rights complaints against Cleveland baseball team name and logo get creative

Indians at Orioles July 1, 2012

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

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