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July 10, 2018
Supreme Court nominee Kavanaugh's workplace safety record: What to expect

Judge Brett Kavanaugh, President Trump’s choice to replace Justice Anthony Kennedy on the bench of the U.S. Supreme Court, has served as a judge on the U.S. Court of Appeals for the D.C. Circuit since 2006, three years after he was nominated for the position by President George W. Bush. Kavanaugh had worked in the Bush administration advising the president on choices for the federal courts. His decisions were viewed by Senate Democrats as political, resulting in the extended period of debate. Following negotiations between Democrat and Republican senators, the Senate confirmed Kavanaugh in a 57–36 vote. He was sworn in as a member of the D.C. Circuit by Justice Kennedy.

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Senate Majority Leader Mitch McConnell said the chamber will vote on Kavanaugh’s nomination this Fall before the midterm elections. Prior to that, Kavanaugh will need to endure what are expected to be bruising confirmation hearings. Some questions directed at Kavanaugh may arise from the following workplace safety rulings in which he participated in the D.C. Circuit.

Robert Lee Johnson v. Interstate Management Co., LLC(2017), March 3, 2017 (https://bit.ly/2uiGHav)

Interstate Management fired Robert Johnson, a cook at the company’s hotel, allegedly for unsanitary kitchen practices. Johnson countered that the real reason he was dismissed was because the hotel had retaliated against him for complaining to OSHA about allegedly unsafe workplace conditions at the hotel. A district court dismissed the claim because Section 11(c) of the OSH Act does not provide a private cause of action for retaliation claims. The D.C. Circuit panel affirmed. Kavanaugh wrote the opinion and stated:

“Although Section 11(c) affords the Secretary of Labor a cause of action, the text of Section 11(c) does not expressly grant employees a private cause of action for retaliation claims. Therefore, the question is whether a private cause of action is implied by the statute. The answer is no.
“The text of Section 11(c) specifically addresses who may sue. The statute grants such authority to the Secretary of Labor, not to private parties.”

Sea World of Florida v. Perez, April 11, 2014 (https://bit.ly/2m8dgnT)

OSHA cited SeaWorld for violations of the OSH Act’s general duty clause after a trainer died during a performance with a killer whale. According to OSHA, the trainer should have been protected from the whale, a “recognized hazard,” by a physical barrier. SeaWorld contended that the finding that it exposed its employees to a “recognized hazard” was unsupported by substantial evidence. Second, it contended that “when some risk is inherent in a business activity, that risk cannot constitute a ‘recognized hazard.’” The court ruled for OSHA.

In a separate opinion, Kavanaugh dissented, writing:

“The broad question implicated by this case is this: When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?
“The Department of Labor, acting with a fair degree of prudence and wisdom, has not traditionally tried to stretch its general authority under the Act to regulate participants taking part in the normal activities of sports events or entertainment shows.
“In my view, the Department of Labor’s unprecedented assertion of authority to proscribe SeaWorld’s whale show…irrationally and arbitrarily distinguishes close contact between trainers and whales in SeaWorld shows from contact between players in the NFL or speeding in NASCAR races, for example, which the Department still proclaims as exempt from regulation under this statute.”
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