Kavanaugh's awful SeaWorld dissent shows how different having Merrick Garland on the court would be
the company took the matter to the D.C. Circuit, where the lead attorney
representing SeaWorld was Eugene Scalia, son of the late Justice Antonin Scalia.
In 2014, the court denied the pe ion to review the case on a vote of 2-1, with
Chief Judge Judith Rogers and Judge Merrick Garland holding for the majority.
Judge Kavanaugh dissented.
In a sharply pointed piece published at the website Confined Space run by Jordan Barab, the former Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, he writes:
A former OSHA assistant secretary, David Michaels, said, “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.” [...]
Kavanaugh’s idea of making America great again apparently harkens 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.)
“Perverse and erroneous.”
Kavanaugh argued that OSHA had acted “paternalistically” and
shouldn’t be deciding for workers whether a particular employment in entertainment and sports—football, boxing, car racing, etc.—is too dangerous.
Rogers and Garland pointed out, however, that the 48-year-old
Occupational Safety and Health Act requires employers to make sure the workplace is safe and not put the onus on employees
to choose whether they want to be employed safely or to risk death every time they show up for work.
https://www.dailykos.com/stories/1779959
OSHA will be gutted, like CFPB, if not killed, by oligarchy's HACK5 SCOTUS so-called judges.