While most of the discussion of President Trump’s nomination of Brett Kavanaugh to the Supreme Court focuses on the possibility that he will be the deciding vote to repeal Rowe v. Wade or that the will bend over backwards to help Trump out of the Russia investigation, there is clear evidence that Kavanaugh is overly friendly to corporate America, and hostile to workplace safety, the Occupational Safety and Health Act and the environment.

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.

OSHA issued a $70,000 willful General Duty Clause Citation against Sea World and 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.

The Occupational Safety and Health Review Commission upheld OSHA’s citation, and Sea World appealed to the Court of Appeals. The D.C. Circuit court decided 2-1 in favor of OSHA. The Court found that  “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,” and that there was substantial evidence that there were feasible means to protect employees without impacting the business. The majority opinion upholding OSHA’s action was written by Circuit Judge Judith Rogers. Also supporting OSHA was Chief Judge Merrick Garland.

The lone dissenter, opposing OSHA’s citation, was Circuit Judge Brett Kavanaugh.

According to former OSHA Assistant Secretary David Michaels, “In his dissent in the Sea World decision, Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.”

Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.  —  David Michaels

Garland, as you may remember was nominated to the Supreme Court in 2016, following the death of Supreme Court Justice Antonin Scalia. Republicans, led by Senate Majority Leader Mitch McConnell, infamously refused to consider Obama’s nomination, allowing Trump to appoint Neil Gorsuch to the Court. And the lead attorney representing Sea World was Eugene Scalia, son of deceased Justice Antonin Scalia.

Are Whale Shows A Sport Like Football?

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.

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.

One problem with this argument, as 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.

Second, as the majority opinion points out, “physical contact between players is ‘intrinsic’ to professional football in a way that it is not to a killer whale show.” Spectators can take pleasure from a whale jumping out of the water and doing back flips even without close personal contact with a human trainer.

In fact, the show went on even after the OSHA citation. Following Brancheau’s death, Sea World implemented many of the controls that OSHA recommended in its General Duty Clause citation — and still managed to attract customers to the park — and even to the killer whale shows — without the close personal contact.

Hostility Toward OSHA

Kavanaugh’s dissent drips with hostility toward OSHA and a basic misunderstanding of the act and the principles — and law — behind it. Comparing killer whale shows to football, boxing, car racing, as well  as other “extremely dangerous” sports such as “Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball….” etc., etc., Kavanaugh objects to OSHA’s “paternalistic” intervention because “the participants in those activities want to take part.”

And then goes on to state (cue the heroic music)

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.

He then asks

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.

Happily, Garland and Rogers were more knowledgeable about the Occupational Safety and Heath Act than Kavanaugh. They point out that the OSHAct 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.

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.  Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had “assumed” the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.  Maybe the worker even liked doing dangerous work.  Employers also escaped responsibility by showing that the worker was somehow negligent. (Interestingly, Sea World originally blamed Brancheau for her own death because she hadn’t tied her hair back.)

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.

Rogers and Garland were forced to remind Kavanaugh that the employer’s duty under the OSHAct isn’t reduced by “such common law doctrines as assumption of risk, contributory negligence, or comparative negligence.”

Workers Comp laws, originally passed in the early 20th century, were supposed to be no-fault. It didn’t matter who was at fault, if the worker was hurt, the worker got compensated.  And the OSHAct, passed in 1970, further states clearly and unequivocally that the employer is responsible for ensuring that the workplace is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” and sets up a mechanism to enforce the law and penalize employers who violated it.  Even if the macho employee wants to defy death, the law states that the workers may not work at heights without fall protection or go down into deep trenches without shoring. And it’s the employer’s job to make sure that employees are not endangered.

Did Brancheau enjoy her job? Undoubtedly.

Did she “willingly accept the risk of violent death as part of their job?”  Unlikely. And legally irrelevant.

Did she deserve a safe workplace? Absolutely.

Nothing New Under the Sun?

Kavanaugh also objected to OSHA’s citation because the agency allegedly “departed from tradition and stormed headlong into a new regulatory arena.”

Well, first, Congress put the General Duty Clause into the OSHAct to address “unique” recognized hazards for which there is no OSHA standard.

Second, objecting to OSHA “storming into a new arena” brings back memories of the arguments used by previous OSHA heads, politicians and the health care industry when unions petitioned the agency in the late 1980’s for a bloodborne pathogens standard to prevent HIV infection and over 300 health care worker deaths a year from hepatitis B. At that time, infectious diseases were “a new regulatory arena.” Thankfully, Judge (or Justice) Kavanaugh wasn’t around then to rule on that standard. Thousands of health care workers owe their lives to OSHA’s move into the “new regulatory arena” of infectious diseases.

Bad for the Environment

Ken Ward of the Charleston Gazette-Mail reminds us that Kavanaugh is not only anti-worker (and anti-OSHA), but also anti-environment (and anti-EPA). In 2011, Kavanaugh was the lone dissenter in a case where Arch Coal had challenged the Environmental Protection Agency’s authority to cancel a mountain-top removal permit that had been issued by the U.S. Army Corps of Engineers. The 2,300-acre Spruce operation that would have buried more than seven miles of streams.  “The EPA cited the growing scientific evidence that mountaintop removal mining significantly damages water quality downstream and noted an independent engineering study that found Arch Coal could have greatly reduced the Spruce Mine’s impact.

Kavanaugh’s argument is that EPA didn’t do a proper cost benefit analysis. Suddenly becoming a champion of working people and unions (at least when it benefits the company), Kavanaugh argued that EPA had failed to factor in the costs of  putting more than 300 United Mine Workers union members out of work.  Once again, Kavanaugh was making stuff up (legally). Arch Coal hadn’t even made that argument.

Kavanaugh also criticized the agency’s examination of potential damage to aquatic life as an “utterly one-sided analysis.” Perhaps the fish had also “accepted the risk” of living in streams near coal deposits.

One of the judges in the majority was an Ronald Reagan pick, and the other was appointed by President Obama.


Kavanaugh stated at last night’s press conference that one of his legal principles is that “A judge must interpret statutes as written.”  He might have added that to interpret the law as written, one must first read and understand the law.

He also warmly told the world that his mother was a prosecutor whose trademark line was: “‘Use your common sense. ‘What rings true? What rings false?’ That’s good advice for a juror and for a son. ”

Indeed it is. And maybe he could explain to the parents and husband of Dawn Brancheau why it rings false to him that the company responsible for their daughter’s safety should be held responsible for her death —  and held to the same standard as every other employer in the country.

Until he does that, he doesn’t belong on the Supreme Court.


Update on Kavanaugh’s testimony before the Senate here.

33 thoughts on “Kavanaugh: Threat to Workers and to OSHA”
  1. Jeez,

    You don’t logically make a distinction between car racing and SeaWorld trainer. You think you do, but you don’t. The trainer that passed away knew that was a possibility. They don’t call them friendly whales, they are called killer whales.

    And no I didn’t vote for Trump. Yes, I voted for Obama both times. Stop trying to create a nanny state.

    1. Mia, employers are responsible by law for identifying, evaluating and correcting workplace hazards in addition to providing information and training to employees. They cannot ignore hazards and tell workers to assume the risk. That is not legal and never has been since OSHA was established nearly 50 years ago. It has nothing to do with creating a “nanny state.”

      The employer has control and direction of the workplace and thus has responsibilities to create a safe workplace. In this case, the employer had total control of the design of the whale show, whereas the employees had to follow the employer’s design. The employer is in a position to design the show to minimize hazards. The employee has no such control.

      It is not acceptable, legally nor morally, to provide a dangerous place of work and tell employees to accept the danger or get out. Its equivalent to playing Russian roulette with employees lives.

      1. Leon,
        The law was written to protect workers in situations where the risk was not apparent and efforts could be made to protect the worker’s life and well being without changing the nature of what they do. Someone working in a factory or on some sort of oil rig is there for the purpose of building something or extracting something. That process should be made safe, everyone agrees with that.
        The nature of killer whale trainer would change if the trainer could not interact with the killer whale. Government imposition changes that nature and what the crowd wants to see. The worker understands this situation, knows the risks and assumes them as unavoidable. Mitigating that risk changes the nature and you no longer have a killer whale show, you have an aquarium.

        This idea that competition someone gets around the argument is equally absurd. How does competition change things at all? We have this obsession that we can do otherwise horrible things all in the name of competition. Here, you will undermine your belief because of ‘competition?’ Absurd. Regardless, professional sports are entertainment. Circus Ole is entertainment. All those distasteful shows where a person places their head in an alligator or the Ringling Circus in a lion (in the past) by your definition should not be allowed. There is no safety standard one can apply to a Circus Ole performer that will not change the nature of the event in a way that does not impact it in a way that would make the crowd less likely to see it. People want to see someone defying risk and doing something interesting. The fact they assume that risk is a large part of why they want to see it. Same with the race car driver.

        Like I said, stop trying to make this a nanny state. We are adults and the government shouldn’t interfere with our consenting activities. At least, for the love of God, stop pretending this guy is against all safety standards for workers. It is this sort of hyperbole that got us this a$$ clown in the office. Common sense goes a long way…

  2. Car racing is a sport. Whale shows re not. You’re defending “assumption of risk.” Not permitted. Workers on top of a building know the job is dangerous but OSH requires the employer to mke it as safe as possible. It’s not the “nanny state,” it’s civilization. It’s putting responsibility where it belongs. It’s the law that gives workers the right to work in a safe workplace and gives that responsibility to employers.

    1. Who cares if car racing is a sport? It doesn’t change anything. Cicus Ole is art. So is that allowed?
      Nobody is saying employers shouldn’t provide safety equipment and make the employees wear it while on the top of a building. If you think this debate is about then then you are a lost child and need to re-read that OSHA case.

      1. What is a sport and what isn’t is only relevant because those are the analogies that Kavanaugh made in his SeaWorld decision. I read the case very carefully and totally disagree (as did the majority of the court.

        Regarding Cirque du Soleil, OSHA actually cited them a few years back after the death of a performer caused by faulty equipment that hand’t been inspected and adequately maintained.

        The debate is not about “the nanny state” or any other red herrings. It’s about whale trainers, construction workers, health care workers (do they “assume” the risk of infectious diseases?) and every other American who has the right to work in a safe workplace, whether they accept the risk or not.

        1. Why should sports be different? They are paid employees of the team(company), or the NFL, NBA etc. The risk are well known, the injury rates, fatality rates are extremely high, they are represented by a union, they pay taxes, work under rules and wear PPE. Sounds like every other worker in the US but someone has decided to give them a free pass, no doubt many people on that collusion money train.

  3. He grew up in the company’s houses, he went to the company schools, he was working for the company, according to company rules. He always drank company water, he always used company light and the company’s preachers taught him what the company thinks is right.

  4. I still take some with attempting to remove “assumption of risk” from the Sea World case. The premise of your argument that whale shows are not “sporting events” is spot-on. However, you’re ignoring a critical element here. Whale shows, exactly like sports, are a form of entertainment. Where I tend to take exception is when OSHA “cherry picks” which forms of entertainment have an “assumption of risk” and which do not. Do NFL have teams have 300 logs and post summaries for their injured football players? Why not? Are the teams cited when players become injured? The players are not contractors in the traditional sense. They cannot suddenly decide they are going to play for a different team the next week. The player’s work and daily activities are strictly regimented by the organization. You say that assumption of risk is not a permissible defense? Why does OSHA not cite Fire Departments or Police Agencies when their employees are killed in the line of duty? Where does it end? Are soldiers not accepting an “assumption of risk”? If not in war time then what about training fatalities?

    OSHA was capricious & arbitrary in the Sea World ruling because they capriciously & arbitrarily deem what they do & do not regulate. Typically through a lens of political expedience and money. Just like the EPA. Anyone who thinks the EPA mandate is to protect the environment is fooling themselves. Business can pollute as much of whatever they want….They just better report it properly so the EPA knows what to charge. There’s a reason they don’t regulate households. Not enough money.

    Both OSHA and the EPA have lost sight of their respective mandates.

  5. Unless, of course, my illustration of fire fighters, police officers & soldiers are yet further examples of the Government exempting themselves from the rules they capriciously & arbitrarily impose on the rest of us.

  6. Actually, NFL teams do keep injury and illness logs. OSHA does cite fire departments. Or at least state OSHA plans do. Federal OSHA doesn’t cover public employees, not because it doesn’t want to, but because the law doesn’t allow them to — except in full state plans or public employee-only state plans. (I’ve spent my entire career — in side and outside of OSHA — trying to get states to cover public employees.)

    Employers — even in “inherently dangerous” industries — are required to make the workplace as safe as possible. If a fire department doesn’t comply with OSHA regs, or industry standards, then OSHA (state) can cite. Same with “inherently dangerous” workplaces like prisons.

    A related story: When the Gingrich “Contract on America” Republicans took over Congress in 1995, they decided to establish a Congressional OSHA office so that Congressional reps would understand better the unfair burden that OSHA put on private sector employers. What happened was just the opposite: that the office found numerous serious hazards in Congressional buildings (fire, asbestos, etc) and forced Congress to fix them.

    1. I understand NFL teams maintain logs for office personnel and stadium workers and the like. That wasn’t what I asked. I said “players”. I strains credulity to allude that player injuries are logged and every time a player hospitalization occurs due to serious injury that the team calls OSHA and reports it and OSHA, in turn, conducts site visits, investigates the injury and issues citations to the team under General Duty. I also understand that if Fire Departments or Police agencies are negligent they can be held accountable as well. However, and I should admit that I used to be a Peace Officer, if you are suggesting that every time a fire fighter dies fighting a fire or a police officer is shot on the side of the road that it prompts OSHA investigations and citations, or even involvement, it strains credulity as well.

      I would argue that your statement:

      “Employers — even in “inherently dangerous” industries — are required to make the workplace as safe as possible. If a fire department doesn’t comply with OSHA regs, or industry standards, then OSHA (state) can cite. Same with “inherently dangerous” workplaces like prisons.”

      Factually, supports my original premise that OSHA was capricious and arbitrary in the Sea World case. Because, as you said, OSHA “can cite”. The issue is they don’t. Just like with professional athletes; they just don’t. Therefore, the decision to investigate, cite & require remediation is a dramatic departure from their outlook upon otherwise similar circumstances.

      OSHA’s actions in the Sea World case were capricious and arbitrary because they invoked their discretion to intervene due to the highly public nature of this particular event. How many athletes and entertainers have died without OSHA involvement?

      1. Furthermore, the “Contract on America” example is hardly an apples-to-apples comparison of the burdens OSHA compliance places on private sector employers. Moreover, to say the outcome of the experiment disproved there is an unfair burden, let alone “just the opposite” proved there is no unfair burden is non sequitur and disingenuous at best. The fact that the Congressional OSHA office found numerous serious hazards that required remediation in no way disproves there is an unfair burden placed upon private sector employers. What it proved is that the building needed fixed. There is no correlation between that and regulatory compliance burdens.

        Politicians and their office cronies is NOT a representative sample of what private sector employers must navigate to ensure regulatory compliance. The recording criteria and some of the determinations which force ownership by the employer are beyond the pale. Someone rolls their ankle walking down a hallway? Clearly that’s the employer. One employee punches another? Clearly the employer didn’t do enough. The fact of the matter is the “presumption of work relatedness” is tantamount to guilty until proven innocent. Your argument is guilty until proven innocent is not an “unfair burden”?

        1. By the way……I know I sound hostile to you. I’m not. I actually enjoy having some civil discourse and disagreement. It’s hard for Safety people to find other people that care enough to debate. Thanks.

        2. OSHA spends an enormous amount of time and care – especially with General Duty Clause citations — describing what is not covered. Most “worker on worker” workplace violence cases, or those involving relationships, most deaths of law enforcement officers, etc.
          But if a fire department was found to have deviated from well-established procedures, or had faulty eqiupment or poor training, (a state plan) OSHA might get involved (and has). While it’s never happened, I would think if a police officer could show that s/he was knowingly and consistently given faulty weapons or broken-down vehicles, and they had led to injury or death, OSHA might consider getting involved.
          In the SeaWorld case, we had a whale that had been involved in previous fatalities, and the whale shows did not depend on close, personal contact with trainers. It didn’t change essential nature of the show. The still jumped and did flips and splashed. The trainers just had to be protected.

  7. I’m struggling to accept that this article is really addressing Sea World, Congress OSH, or anything about workplace safety specifically. It’s a hack job to discredit Kavanaugh, nothing more. It wouldn’t matter who the pick was for the highest court, Barab would be opposed. JB is a far left activist and has always opposed any politician, judge, or person who has an alternative view. This is more of “the sky is falling” than it is anything else.

    Things are never as bad as they seem. Kavanaugh is not going kill millions of people and set OSHA back 40 years. Roe v Wade will not be overturned. Nothing so tumultuous will occur. We have to look past our political biases to have honest feedback about those who interpret the law.

    1. First, I’m hardly “far left.” Far from it. And if I am, so is most of the country.
      If you think this is a matter of “the sky is falling,” show me one decision that Kavanaugh has written that could be characterized as pro-worker, pro-labor, or pro-regulatory protection. What makes you think his opinions on the Supreme Court would be any different?

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