KavanaughGood news!

Good News! Supreme Court nominee Brett Kavanaugh thinks it’s perfectly reasonable for American workers to expect to come home safely at the end of the day, even if they work in the entertainment industry. Sort of.

So he claims in his response to a written question from the Senate Judiciary Committee.

Unfortunately, “expecting” isn’t 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, I’m not an attorney, but I do get to play one in this blog — and, at least when it comes to occupational safety law — 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 that’s 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 OSHA’s favor.

Kavanaugh dissented from the majority opinion, arguing in his 2014 written opinion that OSHA had paternalistically interfered in a worker’s 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 — and only Congress — could give OSHA that authority.

And during last week’s 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 Committee’s questions on two shaky assertions that I addressed in my previous post on his responses to Senator Diane Feinstein’s (D-CA) questions at last week’s confirmation hearing: use of the tort system and asserting that close contact in whale training is just as “intrinsic” to whale shows as tackling is to football or fast driving is to auto races.

Kavanaugh SeaWorldKavanaugh continues to insist that even if OSHA can’t 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]: “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.”

Do you believe that fearless, courageous, and tough people do not expect their employer to “furnish 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.”? If not, please explain.

RESPONSE: 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 how state tort law and our civil justice system help promote workplace safety, Kavanaugh responded:

In general, state tort law and our civil justice system can provide an opportunity 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.  Kavanaugh has it exactly backwards. Tort law — the ability to file a lawsuit — is not a replacement for the Occupation Safety and Health Act.  One fact that Kavanaugh continues to ignore is that workers cannot sue their employers if they are hurt on the job.

Kavanaugh has it exactly backwards. Tort law — the ability to file a lawsuit — is not a replacement for the Occupation Safety and Health Act. One fact that Kavanaugh continues to ignore is that workers cannot sue their employers if they are hurt on the job.

A little history.  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 — that workers got hurt because they were careless, or that workers had assumed the risk (and liability) when they took the dangerous work — often prevailed with juries.

On the other hand, employer sometimes lost — and lost big. Juries were unpredictable.

State workers’ compensation systems were created in the early 20th century to establish a “no fault” 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 — theoretically — 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 — a problem that led to passage of the Occupational Safety and Health Act (OSHAct) in 1970 which requires employers to provide a safe workplace — to prevent workers from getting hurt or killed on the job.

So what the hell is he talking about?

We’ve 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.  Another example is diacetyl, a popcorn flavoring that destroyed workers’ lungs. Most use of diacetyl were discontinued after disabled workers or their families won massive lawsuits.

But it’s important to remember that those workers did not sue their employers, because suing your employer is prohibited by comp laws.  They sued a “third party,” the manufacturers of the asbestos or diacetyl — 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.  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,  third party lawsuits are pretty much impossible to use in workplace safety incidents — 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 Brancheau’s survivors to sue after a killer whale dismembered and drowned her. (And third-party lawsuits against God — the whale’s creator — are rarely successful.)

Why doesn’t Brett Kavanaugh — or the staff that actually wrote these answers, or the clerks that work for him  — know all of these things?

No clue. Either they’re uninformed, or they hope the Senators (and the American public) are uninformed. Either way, it’s 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 “intrinsic” or essential to whale shows.

When asked to explain how close contact between whale and trainer was intrinsic to the killer whale shows at SeaWorld  — especially when SeaWorld had itself imposed the safety measures that OSHA was requiring — Kavanaugh simply repeated what he argued in his dissent, namely that “[t]he Department [of Labor] cannot reasonably distinguish close contact with whales at SeaWorld from tackling in the NFL or speeding in NASCAR.” 

Well, no. Wrong.

First, as I already explained earlier this week, killer whale shows are not sports.

Whale trainers are not athletes; they’re workers in the entertainment industry. There is no fight between whale and human (or there shouldn’t 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 ‘intrinsic” to whale shows and are not comparable to car racing or football. Obviously you can’t have a car race if cars can’t speed.  Football would arguably not be the same if you couldn’t tackle. But, as SeaWorld continues to prove every day, you can have successful, entertaining killer whale shows even without close contact between whale and trainer.

Kavanaugh is a human time machine. His goal — and the goal of his supporters — is to return us now to those thrilling days of yesteryear when employers had no responsibility for workers who were injured or killed on the job because “fearless, courageous, and tough” workers had willingly “assumed” the risks.

Finally, just because a hazard may be inherent to a job, doesn’t mean that OSHA can’t require feasible safety measures to prevent workers from getting hurt.  You can’t 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 can’t 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 can’t have killer whale shows that don’t star a 12,000 pound wild animal with large teeth, but you can protect trainers from the hazard while spectators still enjoy the show. That’s 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 workers’ rights must be a dreary job, I learned that you can at least entertain yourself and others by occasionally saying phrases like “ipse dixit”  —  a Latin legal term meaning “an assertion made but not proved.

Kavanaugh argues in his written comments that despite OSHA’s insistence that it would never ban tackling in football, 

that ipse dixit just brings us back to square one: Why isn’t close contact between trainers and whales as intrinsic to SeaWorld’s aquatic entertainment enterprise as tackling is to football or speeding is to auto racing?

Admit it. It’s not possible to say “ipse dixit” without smiling, just a little.

Conclusion: Kavanaugh is a human time machine

Kavanaugh’s responses to his written questions, ipse dixit, just bring us back to our original question: Why is someone who doesn’t understand occupational safety and health law, and who is hostile to worker safety being considered for the Supreme Court?

Brett Kavanaugh is a human time machine. His goal — and the goal of his supporters — is to return us now to those thrilling days of yesteryear — one hundred years in the past — when employers had no responsibility for workers who were injured or killed on the job because “fearless, courageous, and tough” workers had willingly “assumed” the risks.

Back to a time when a workers’ only recourse was to sue employers after they got hurt on the job.

Back to a time before employers had a legal responsibility to provide a safe workplace.

Back to a time when workers had to choose between their jobs and their lives.

This is not someone we want on the Supreme Court of the United States.


5 thoughts on “There He Goes Again: Kavanaugh Still Doesn’t Get It”
  1. FYI, Jordan. In West Virginia, an employee can sue his employer if the employer has failed to comply with OSHA or recognized safety standards. Have served as an expert witness on numerous such cases. That’s not meant to take away from your point about comp or imply that’s the norm in the US. But just as Kavanaugh should be doing his homework, we should be doing ours.
    Although it wasn’t your intent to debate orca training, I’d like to share a few comments. If we are concerned about people being killed by whales, where are the safety standards? Per OSHA’s letter below, what are “feasible” measures to protect whale trainers?
    Let me preface what I am about to say by stating that I am not a fan of Sea World or its practices, however….as happens so often, OSHA leaves it up to the employer to figure it out, but comes in after the mishap to judge. What technical expertise does OSHA have to evaluate safe work practices associated with the training of killer whales(or any live animals) at Sea World? It’s common sense, right? I have been involved with training of animals for many years, and have competed all over the country. I have found that common sense is not so common when it comes to animal training.
    So, to expect a “lay” person with no formal experience in the animal training world to judge Sea World’s practices is very suspect. Some may say, well the animal has hurt people before. Anyone involved in serious animal training knows that getting hurt comes with the territory. We are dealing with living beings, not machines. My level of risk acceptance is completely different when it comes to working with animals versus machinery. Am not implying that Sea World has no skin in the game. Am simply trying to state that it’s not that simple.
    If you want to claim that Kavanaugh is clueless and that’s a big liability, fair enough. It’s not my intent to debate that. I think it’s equally problematic for “clueless” people to stick their nose into things of which they know little, if anything…especially a regulatory agency. Training living animals is a highly specialized field. One cannot engineer it. If Sea World had established safe work practices they did not follow, shame on them. If this is simply a matter of “lay” people claiming that Sea World did not do enough or had a perverse tolerance of risk, my question for them is, “Show me your credentials to make such judgments.”
    This issue with Sea World is nothing new. I am sensitive to this issue because of my involvement with training animals and meek attempts to get the public more concerned about the importance of proper animal training. But no, politicians would rather make laws outlawing bull terrier breeds rather than address the root issue. “Killer” whales can be dangerous, too, but we are not outlawing them in captivity. So, now I see people concerned about proper animal training and ask myself, “Why all of a sudden are people concerned?” I am afraid the answer, at least in some cases, is one of political convenience. I’d be willing to wager that once this blows over with Kavanaugh, it will be back to business for some, taking the kiddies to see the man stick his head in the alligator’s mouth.
    You asked me elsewhere what OSHA should be doing. If this industry is such a risk to its workers that it is worthy of so much publicity, OSHA should work directly with the industry to develop recognized safety standards with which everyone can live. Otherwise, add it to the list of many activities for which we have no recognized safety standards and accept the risk, as difficult as that is to say.

  2. Pretty damn good explanation for a non-lawyer, Jordan! By the way, with regard to TB’s comments above, West Virginia is the exception to the rule… WV has a “deliberate intent” exception to the workers’ comp bar; that is, if the Plaintiff can prove that the unsafe condition that caused the death or injury is the result of the employer’s “deliberate intent”, damages are recoverable. So, for example, when the Upper Big Branch mine blew up in 2010, Massey offered each of the families multi-million dollar settlements within a few weeks of the disaster. Had that same explosion occurred in Kentucky, there would have been no such settlement offers – because here in Kentucky, the Plaintiff must prove that the employer’s action was an “unprovoked act of physical aggression”, which is literally an impossible standard… Even if the employer INTENTIONALLY created and maintained the unsafe condition which caused the death/injury, the employer has immunity under the KY workers’ comp statute. It is completely unfair to workers, but exists because the KY General Assembly is dominated by corporate interest (and has been for decades) who don’t give two shits after workers’ lives…

    1. Tony2581, it is sad, but when in Columbia, was amazed to learn that an employer of a worker killed on the job has certain responsibilities to take care of his/her family. For example, if the worker has children, the employer must provide for them until they are adults. …and then we have states like Kentucky.

      There are people in the US who believe we have “good” safety practices here. …if they only knew.

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Discover more from Confined Space

Subscribe now to keep reading and get access to the full archive.

Continue reading