July 10, 2018 Celeste Monforton, DrPH, MPH 1Comment

Jordan Barab at ConfinedSpace.com adds something unique to the commentary about Supreme Court nominee Brett Kavanaugh.  Barab recalls a 2014 decision by the U.S. Court of Appeals for the D.C. Circuit concerning a worker fatality incident investigated by OSHA. The Court ruled in favor of OSHA’s citations against the employer, but judge Brett Kavanaugh wrote a dissenting opinion.

Barab writes:

“In 2010 a killer whale dismembered and drowned a Sea World trainer, Dawn Brancheau, in front of hundreds of horrified men, women and children looking forward to a day of fun and frolic with sea animals. The whale that killed Brancheau had been implicated in three previous human deaths.”

The killer whale was named Tilikum and subject of the 2013 documentary Blackfish.

Barab explains that OSHA investigated the circumstances that led to Dawn Brancheau’s death at Sea World. The agency issued a citation for a willful violation of OSHA’s “general duty clause.”

“OSHA ordered the company to reduce the hazard by physically separating trainers from the whales. OSHA proved that Sea World and its employees knew from previous incidents and close calls that the all of its killer whales were dangerous, and that Tilikum, the whale that killed Brancheau, was particularly dangerous. Experts also described a feasible means of protecting employees — actions that Sea World in fact implemented following Brancheau’s death.”

Sea World challenged OSHA’s citation which led to the proceedings before the U.S. Court of Appeals. In the majority opinion, Judges Judith Rogers and Merrick Garland found:

“There was substantial record evidence that Sea World recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable.”

Barab dissects Judge Kavanaugh’s dissenting opinion.

“Kavanaugh calls OSHA’s action ‘arbitrary and capricious’ because regulating the safety of killer whale shows is allegedly no different than regulating the safety of tackling in football, or speeding in sports car racing, or punching in boxing — things in which OSHA has never involved itself.  And just as you’d have no football if you didn’t have tackling, or no sports car racing if you didn’t have speeding, there would allegedly be no Sea World if there was no close human contact with killer whales.”

“One problem with this argument, as Judge Rogers points out, is that no one — except Kavanaugh — claims that whale shows are a sport where you are there to see who ‘wins.'”

“Or, to put it more bluntly, people go to boxing matches to watch people punch each other, and go to football games to watch one team physically stop the other from scoring.  But tourists — including small children — go to Sea World to watch attractive trainers lovingly interact with adorable sea creatures.  Killer whale shows are not supposed to be modern gladiatorial contests where the audience looks forward to seeing whether the trainers will successfully keep their limbs attached or finish the show bleeding and dead at the bottom of a pool.”

“Not even Sea World made the football/car racing/boxing analogy, Rogers and Garland point out.  By making that argument, Kavanaugh is just makin’ stuff up — adding his own opinions on matters that weren’t even part of the case.”

Barab writes:

“Kavanaugh’s dissent drips with hostility toward OSHA and a basic misunderstanding of the OSH Act and the principles — and law — behind it.  … Kavanaugh objects to OSHA’s ‘paternalistic’ intervention because ‘the participants in those activities want to take part.'”

Barab points us to this doozy from Kavanaugh’s dissent:

“To be fearless, courageous, tough – to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk – is among the greatest forms of personal achievement for many who take part in these activities.  American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so.”

“When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants?  And most importantly for this case, who decides that the risk to participants is too high?”

Not “the bureaucracy at the U.S. Department of Labor,” according to Kavanaugh.

Barab notes that Judges Rogers and Garland and Rogers are more knowledgeable about the OSH Act than Kavanaugh.

“They point out that the OSH Act puts the duty on the employer to create a safe workplace, not on the employees to choose whether or not they want to risk death — especially when the employer can make the workplace safer.”

Read Barab’s full account of Judge Brett Kavanaugh’s hostility to OSHA and/or his dissenting opinion in Sea World of Florida v. Secretary of Labor (decided April 2014.)

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