Monday, July 9, 2018

Kavanaugh, Seaworld, and OSHA

Welp, now we know . . . President Trump's pick to replace Justice Kennedy is Judge Kavanaugh from the D.C. Circuit. I teach employment law for Penn State's School of Labor and Employment Relations. The past several semesters, the class on OSHA has included discussion of Seaworld of Fla. v. Perez - including Judge Kavanaugh's dissent.

This case arose from a tragic fatality involving a killer whale trainer. The issue was whether SeaWorld's killer whale shows violated OSHA's "general duty clause" - which requires a workplace "free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." The 2-judge majority held that SeaWorld had indeed violated OSHA. The hazards of killer whale performances could be abated by maintaining distance from the whales, working behind a barrier, and/or ceasing waterwork.

SCOTUS Nominee
Judge Brett Kavanaugh
Judge Kavanaugh dissented. Why? Judge Kavanaugh's basic premise was that certain sports and entertainment spectacles are inherently dangerous. Should they be regulated? In Judge Kavanaugh's words:
That policy question is not before us. My legal disagreement with the majority opinion boils down to one basic question: Who decides? Under current law, it is not the Department of Labor.
He starts with a litany of risky endeavors, inviting the question of whether they too must be shut down (or altered) under the OSHA general duty clause:
Many sports events and entertainment shows can be extremely dangerous for the participants. Football. 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. Bull riding at the rodeo. Skydiving into the stadium before a football game. Daredevil motorcycle jumps. Stock car racing. Cheerleading vaults. Boxing. The balance beam. The ironman triathlon. Animal trainer shows. Movie stunts. The list goes on.
I confess that I enjoy (perhaps too much) watching students squirm as I challenge them with this issue from Judge Kavanaugh's dissent: "The Department [of Labor] cannot reasonably distinguish close contact with whales at SeaWorld from tackling in the NFL."

So, does OSHA prohibit tackling in the NFL? I don't think we'll see that case any time soon; but, if we do, I think we know how Justice (if he gets confirmed) Kavanaugh would vote.