Friday, April 11, 2014
The D.C. Circuit, by a 2-1 vote, has denied SeaWorld of Florida’s petition for review of an order finding a general duty clause violation related to the death of one of SeaWorld’s killer whale trainers, Dawn Brancheau. The OSH Act’s general duty clause provides that employers shall furnish to 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 his employees.” The ALJ's order found a violation and required SeaWorld to use physical barriers and minimum distances to separate trainers from the killer whales.
The critical disagreement between the majority and the dissent here has to do with the role of OSHA in regulating entertainment and sports industries. The dissent by Judge Kavanaugh argues that OSHA’s insistence on physical barriers and minimum distances strikes at the very nature of the activity itself and is an improper attempt to regulate risks that are intrinsic to the activity. Judge Kavanaugh contends that no principled distinction can be drawn between the regulation of killer whale shows and the regulation of speed in NASCAR races, tackling in NFL football, punching in professional boxing, or any of the myriad dangers of professional stunt acting, circuses, animal shows, air shows, rodeos, and so on. Judge Kavanaugh notes that, prior to this case, OSHA had prudently declined to use the general duty clause to regulate normal activities in the sports and entertainment industries. Judge Kavanaugh argues that the regulation of such inherently risky activities, which are intrinsic to certain sports or entertainment industries, is a policy question for Congress that should not be the subject of general duty clause regulation by OSHA.
The majority, penned by Judge Rogers and joined by Chief Judge Garland, rejects the dissent’s parade of horribles, insisting that such hypotheticals need not be answered in this case and that SeaWorld failed to raise these hypotheticals in the administrative proceedings (a point that Judge Kavanaugh says the Department itself forfeited by failing to raise forfeiture in the appellate proceedings!). If and when squarely presented with other sports or entertainment questions, the majority says, OSHA may find a principled distinction by, for example, determining that physical contact is “‘intrinsic’ to professional football in a way that it is not to a killer whale show.”
I do not believe we have seen the end of this case or of the larger issue it presents. But if, after this ruling, OSHA does attempt more aggressive general duty clause regulation in sports, a student in my Worker Safety Law & Policy course has advanced a very specific suggestion for the next problem to target: head protection for pitchers in Major League Baseball.