Outten & Golden: Empowering Employees in the Workplace

Kavanaugh's SeaWorld dissent shows he wants to drag workers back a century

September 25th, 2018 | Laura Clawson

During his years as a judge on the D.C. Circuit court, Brett Kavanaugh has dedicated a solid amount of time to writing extremist dissents to show us just what kind of a deciding vote he would be on the Supreme Court. One of those is his notorious SeaWorld v. Perez dissent, in which Kavanaugh said SeaWorld shouldn’t be held responsible for the killing of a trainer by an orca. Steven Greenhouse writes that the dissent is “remarkable because Kavanaugh shows far less sympathy to the whale trainer who was dismembered and killed than he shows to SeaWorld for being the victim of what he sees as government overregulation and overreach,” and that he “seemed to lack an empathy gene.”

It’s not just a lack of empathy, though. Kavanaugh’s dissent, Greenhouse suggests, is either profoundly ignorant of history or is an active attempt to undo historical progress:

He said that state tort law—for instance, lawsuits that workers bring against their employer because a machine chopped off an arm—would pressure SeaWorld to assure safety to its workers. But Kavanaugh bafflingly fails to realize that the workers compensation system was set up in the early 1900s in large part to prohibit workers from filing tort lawsuits against their employers. Moreover, state tort law compensates employees only after an arm is amputated or a worker is crippled, while government regulation in the form of OSHA aims to prevent such horrific injuries from ever happening.

In likening Dawn Brancheau to NFL players and NASCAR drivers, Kavanaugh essentially embraced a pro-corporate legal doctrine that was prevalent in the 19th century—that workers assume the risks inherent in a dangerous job. In other words, if Brancheau got killed or injured, well, tough luck. It’s on them. David Michaels, the head of OSHA under President Obama, criticized Kavanaugh for making “the perverse and erroneous assertion that the law allows SeaWorld trainers to willingly accept the risk of violent death as part of their job.” 

Is Kavanaugh that ignorant of history or is he fully aware of the brutal past of American workplaces, and knowingly trying to drag us back to that brutality? Given the totality of what we know about him, the latter seems the safe bet.

This blog was originally published at Daily Kos on September 24, 2018. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.

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