Kavanaugh: Is There Honor in Getting Your Fingers Bitten Off?

When Supreme Court nominee Brett Kavanaugh comes back before the Senate next week to respond to allegations of attempted rape, the Senators may want to follow up on his SeaWorld dissent and testimony (See here and here) by discussing another related story.

For those of you 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 lamented that OSHA was somehow attacking the human spirit.  Whale trainers aren’t just workers, they are sports icons, according to Kavanaugh: “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.” And here OSHA was attempting to paternalistically take that ability away from these sports icons.

If they get tired of talking about the pros and cons of attempted rape, the Senators may want to ask Kavanaugh about this case concerning other animal attendents at Chimps Inc.,  a nonprofit chimpanzee sanctuary in Tumalo, Oregon.

OSHA inspectors visited Chimps Inc. three times last year and identified the safety violations, which included unsecured doors, poor emergency planning and employees unsafely working alone.

The inspectors also uncovered 30 incidents in past years, including cage doors left open and chimpanzees that had escaped or attacked workers, resulting in bites, scratches, bruises, skin being completely torn off hands and at least four finger or thumb amputations.

OSHA recommended a $20,920 fine, but Chimps Inc. appealed and was ultimately fined $12,520, closing the case.

Pretty bad. But it gets worse. Now the company is being investigated for “unlawful practices” by the Oregon Bureau of Labor and Industries for claims by three workers that they “were fired for refusing to sign waivers, including one that waived their right to call 911 in an emergency.”  The penalty could result in a maximum fine of $81,500 to reimburse the three former employees.

Similar to the SeaWorld citation, several of the violations issued by Oregon OSHA fell under the General Duty Clause, which requires employers to provide a safe workplace — even if there are not specific standards. Also similar to SeaWorld, the fix was not difficult, mainly “sealing shut the sliding feed doors. Now, the chimpanzees are only fed through tilting feeding doors, which help keep employees’ hands away from the chimpanzees.”

SeaWorld also argued that close physical contact between trainers and whales was important for the whales’ happiness, and similarly, Chimps Inc. founder and former President, Lesley Day “shared frustrations during an interview with an OSHA inspector about how the inspection was ruining her access and contact with the chimpanzees. ‘We had to lock the slide door in the front enclosure after your last visit,’ Day said. ‘I can only contact the chimps through the enclosures. It’s not like it used to be, and the chimps miss it.'”

I’m sure they do, but probably not as much as the workers miss their fingers, no matter how tough they are.

So the Senators may want to ask Kavanaugh next week whether he things the Oregon OSHA citations against Chimps Inc were justified or was the agency being paternalistic? Did the workers know about and therefore “assume” the risk, absolving Chimps Inc. of responsibility?

And were the Chimps Inc. workers fearless, courageous and tough enough to have their fingers bitten off or is their “personal achievement” being obstructed by the nanny state?

Judge Kavanaugh: Inquiring minds want to know.


Reposted from Confined Space