Supreme Court nominee Brett Kavanaugh does not think it is unreasonable for workers to expect to come home safely at the end of the day, even if they work in the entertainment industry.
So he claims in his response to a written question from the Senate Judiciary Committee.
Unfortunately, âexpectingâ isnât doing. And Kavanaugh, in his dissent from the SeaWorld case, in his testimony before Congress, and now in his written responses, seeks to take away the the ability of workers to make that expectation a reality.
Now, Iâm not an attorney, but I do get to play one in this blog â and, at least when it comes to occupational safety law â I seem to have a better understanding of occupational safety and health law than a certain person who may take a lifetime seat on the Supreme Court of the United States before the autumn leaves start falling. And thatâs disconcerting.
For those just tuning in, in 2010 SeaWorld killer whale trainer Dawn Brancheau was dismembered and killed by a killer whale during a live show in front of hundreds of horrified spectators, including small children.
OSHA, which had proven that SeaWorld was aware that the whale that killed Brancheau, had been involved in previous trainer fatalities, and that killer whales in general were hazardous to trainers, cited SeaWorld and ordered them to use physical barriers or minimum distances to separate trainers from whales. SeaWorld appealed, and both the OSHA Review Commission and the federal Appeals Court found in OSHAâs favor.
Kavanaugh dissented from the majority opinion, arguing in his 2014Â written opinionÂ that OSHA had paternalistically interfered in a workerâs right to risk his or her life in a hazardous workplace, that OSHA had violated its long-standing precedent not to get involved in sports or entertainment, that the agency had no authority to regulate in the sports or entertainment industries and that Congress â and only Congress â could give OSHA that authority.
And during last weekâs Senate confirmation hearing, Kavanaugh doubled down on some of the arguments in his dissent while lying about other parts.
The tort system is not an alternative to OSHA protections
Kavanaugh focuses his responses to the Committeeâs questions on two shaky assertions that I addressed in my previous post on his responses to Senator Diane Feinsteinâs (D-CA) questions at last weekâs confirmation hearing: use of the tort system and asserting that close contact in whale training is just as âintrinsicâ to whale shows as tackling is to football or fast driving is to auto races.
Kavanaugh continues to insist that even if OSHA canât act, workers can still use the tort system and file lawsuits to ensure safe workplaces. In fact, his reliance on tort law as a remedy for worker safety problems has become his preferred method of avoiding answering questions about some of the more outrageous statements he made in his SeaWorld dissent:
QUESTION: You also wrote [in your dissent]: âTo be fearless, courageous, toughâto perform a sport or activity at the highest levels of human capacity, even in the face of known physical riskâ is among the greatest forms of personal achievement for many who take part in these activities.â
Do you believe that fearless, courageous, and tough people do not expect their employer to âfurnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.â? If not, please explain.
RESPONSE:Â State tort law helps ensure that workplaces are reasonably safe. Congress may also regulate workplace safety, as it has done. And federal agencies may also do so within the limits of the statutes and precedents.
When asked howÂ state tort law and our civil justice system helpÂ promote workplace safety, Kavanaugh responded:
In general, state tort law and our civil justice system can provide an opportunityÂ for people who are harmed by the actions or negligence of others to recover damages. The tort system thereby helps deter negligent actions and encourages or requires reasonable safety measures. Of course, state tort law is often augmented by state or federal regulation. It was the scope of federal regulation that was at issue in the SeaWorld case.
Well, actually, no.Â Kavanaugh has it exactly backwards. Tort law â the ability to file a lawsuit â is not a replacement for the Occupation Safety and Health Act.Â One fact that Kavanaugh continues to ignore is that workers cannot sue their employers if they are hurt on the job.
A little history.Â Prior to workers compensation, workers could sue employers after they got hurt on the job. Employers obviously had the upper hand with far more resources than individual workers. And their arguments â that workers got hurt because they were careless, or that workers had assumed the risk (and liability) when they took the dangerous work â often prevailed with juries.
On the other hand, employer sometimes lost â and lost big. Juries were unpredictable.
State workersâ compensation systems were created in the early 20th century to establish a âno faultâ system where employer-provided insurance would reimburse workers for lost wages while providing first-dollar medical coverage and rehabilitation for work-related injuries. In return, workers gave up the right to sue their employer for any injuries (or â theoretically â illnesses) occurring on the job.
The workers compensation premiums paid by employers were supposed to be connected to the rate of injuries in a company (or in an industry sector) and were therefore supposed to provide a incentive for employers to keep the workplace safe. For a variety of reasons, that incentive was never sufficient to protect employees â a problem that led to passage of the Occupational Safety and Health Act (OSHAct) in 1970 which requires employers to provide a safe workplace â to prevent workers from getting hurt or killed on the job.
So what the hell is he talking about?
Weâve all heard of workers winning lawsuits that are large enough to change or destroy an industry. The most famous is probably the lawsuits against the asbestos industry following the deaths of hundreds of thousands of workers from asbestos-related disease over the past century.Â Another example is diacetyl, a popcorn flavoring that destroyed workersâ lungs. Most use of diacetyl were discontinued after disabled workers or their families won massive lawsuits.
But itâs important to remember that those workers did not sue their employers, because suing your employer is prohibited by comp laws.Â They sued a âthird party,â the manufacturers of the asbestos or diacetyl â companies like Johns Manville.
You can certainly make the argument that lawsuits against companies that made asbestos or diacetyl ultimately contributed to making the workplace safer for employees who came after those killed or disabled.Â But Kavanaugh is trying to make this extremely small tail wag a very large dog.
How is that?
First, legal victories in these lawsuits came long after workers suffered and died horrible and preventable deaths. And tens of thousands continue to die each year from asbestos-related disease, despite the successful lawsuits.
Second, the number of successful lawsuits brought by workers against the manufacturers of hazardous chemicals is tiny compared with the thousands of hazardous chemicals in use today.
Finally,Â third party lawsuits are pretty much impossible to use in workplace safety incidents â like SeaWorld. What third party does a worker sue when the employer refuses to provide fall protection equipment, or when an employer forces a worker to go down into a deep, unprotected trench?
Clearly there was no third party for Dawn Brancheauâs survivors to sue after a killer whale dismembered and drowned her. (And third-party lawsuits against God â the whaleâs creator â are rarely successful.)
Why doesnât Brett Kavanaugh â or the staff that actually wrote these answers, or the clerks that work for himÂ â know all of these things?
No clue. Either theyâre uninformed, or they hope the Senators (and the American public) are uninformed. Either way, itâs inexcusable.
Getting eaten by a whale is not the same as racing a car
The second thing Kavanaugh insisted on over and over again in his written responses was the erroneous argument that close contact between trainers and whale was âintrinsicâ or essential to whale shows.
When asked toÂ explain how close contact between whale and trainer was intrinsic to the killer whale shows at SeaWorldÂ â especially when SeaWorldÂ had itself imposed the safety measures that OSHA was requiring â Kavanaugh simply repeated what he argued in his dissent, namely thatÂ â[t]he Department [of Labor] cannotÂ reasonably distinguish close contact with whales at SeaWorld from tackling in the NFL orÂ speeding in NASCAR.âÂ
Well, no. Wrong.
First, as I already explained earlier this week, killer whale shows are not sports.
Whale trainers are not athletes; theyâre workers in the entertainment industry. There is no fight between whale and human (or there shouldnât be). No one is trying to win. No one keeps score. No one is supposed to get hurt. No one is supposed to die.
And second, close contact between whales and trainers is not âintrinsicâ to whale shows and are not comparable to car racing or football. Obviously you canât have a car race if cars canât speed.Â Football would arguably not be the same if you couldnât tackle. But, as SeaWorld continues toÂ prove every day, you can have successful, entertaining killer whale shows even without close contact between whale and trainer.
Finally, just because a hazard may be inherent to a job, doesnât mean that OSHA canât require feasible safety measures to prevent workers from getting hurt.Â You canât work on top of a tall building without the danger of working at a dangerous height, but you can protect those workers from falling without killing the construction industry. You canât process chickens without cutting and hanging, but there are ways to prevent poultry processing workers from getting disabling musculoskeletal disorders while still allowing people to enjoy their wings and nuggets. You canât have killer whale shows that donât star a 12,000 pound wild animal with large teeth, but you can protect trainers from the hazard while spectators still enjoy the show. Thatâs why the OSHAct was passed in 1970.
A Comic Interlude
Now never fear, there is one bright spot to this whole sordid tale. If you think that spending your life incorrectly analyzing the law and taking away workersâ rights must be a dreary job, I learned that you can at least entertain yourself and others by occasionally saying phrases like âipse dixitâÂ âÂ a Latin legal term meaning âan assertion made but not proved.â
Kavanaugh argues in his written comments that despite OSHAâs insistence that it would never ban tackling in football,Â
that ipse dixit just brings us back to square one: Why isnât close contact between trainers and whales as intrinsic to SeaWorldâs aquatic entertainment enterprise as tackling is to football or speeding is to auto racing?
Admit it. Itâs not possible to say âipse dixitâ without smiling, just a little.
Conclusion: Kavanaugh is a human time machine
Kavanaughâs responses to his written questions,Â ipse dixit, just bring us back to our original question: Why is someone who doesnât understand occupational safety and health law, and who is hostile to worker safety being considered for the Supreme Court?
This blog was originally published at Confined Space on September 14, 2018. Reprinted with permission.
About the Author: Jordan BarabÂ wasÂ Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).