Justice Kavanaugh Thinks Animal Trainers Assume the Risk of Being Drowned by Killer Whales

Greg Boles
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Partner at The Boles Firm | Experience Matters

Will Justice Kavanaugh support worker safety?  His 2,900-word dissent in the SeaWorld case, made famous by the movie Blackfish (and in two articles in Outside magazine), is not encouraging.  In 2010, SeaWorld trainer Dawn Brancheau drowned when a trained killer whale pulled her off a platform into the pool, refusing to release her.  OSHA cited SeaWorld for exposing trainers to recognized hazards and SeaWorld appealed.  In a two‑to-one decision, the District of Columbia Circuit Court of Appeals affirmed.  Justice Kavanaugh dissented, likening Brancheau's work to sports like bull riding and claiming that close contact between trainers and whales is no different from "contact between players in the NFL or speeding in NASCAR races."  Underlying his reasoning was a disdain for the idea that society should "paternalistically decide" that people like Brancheau should be protected from "the risk of significant physical injury."  Kavanaugh claimed during his confirmation hearings that he was a "textualist" who was bound by the plain meaning of statutory language.  It is impossible to square this assertion with the plain language of the OSHA statute, which provides that an employer must provided "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 his employees."  29 U.S.C. § 654(a)(1).  It appears that not only will Justice Kavanaugh fail to protect workers from manifestly unsafe employment practices, he is willing to violate his principles of statutory interpretation to do so.

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