In a Slate essay titled “Brett Kavanaugh Has His Own ‘Frozen Trucker’ Case,” labor lawyer Terri Gerstein tries to argue that Judge Kavanaugh’s dissent in SeaWorld v. Perez (2014) shows that “he will be disastrous for working people.” But the only thing that Gerstein shows that Kavanaugh’s SeaWorld dissent has in common with the 2016 dissent by then-Judge Gorsuch in TransAm Trucking v. Administrative Review Board (which I discuss here) is that she and others attacking the nominee will wildly distort and obscure the legal basis of the opinion in order to try to score cheap political points.
The general-duty clause of the Occupational Safety and Health Act requires that each employer provide a place of employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.” In the SeaWorld case, in the aftermath of a terrible incident in which a killer whale drowned a SeaWorld trainer during a performance, the Department of Labor fined SeaWorld for violating this general-duty clause.
Although you wouldn’t know it from Gerstein’s attack, Kavanaugh parted company with the panel majority on whether and how OSHA’s general-duty clause applies to sports events and entertainment shows that present intrinsic risks to participants. In particular, Kavanaugh argued that the Department of Labor had previously recognized, in the Pelron case, that “hazards posed by the normal activities intrinsic to an industry cannot be ‘feasibly’ eliminated and so may not form the basis of a General Duty Clause violation”—and that it had failed to explain why that same rule shouldn’t apply to the SeaWorld activities in dispute. As he put it:
The Department cannot reasonably distinguish close contact with whales at SeaWorld from tackling in the NFL or speeding in NASCAR. The Department’s sole justification for the distinction is that SeaWorld could modify (and indeed, since the Department’s decision, has had to modify) its shows to eliminate close contact with whales without going out of business. But so too, the NFL could ban tackling or punt returns or blocks below the waist. And likewise, NASCAR could impose a speed limit during its races. But the Department has not claimed that it can regulate those activities. So that is not a reasonable way to distinguish sports from SeaWorld. The Department assures us, however, that it would never dictate such outcomes in those sports because “physical contact between players is intrinsic to professional football, as is high speed driving to professional auto racing.” But that ipse dixit just brings us back to square one: Why isn’t close contact between trainers and whales as intrinsic to SeaWorld’s aquatic entertainment enterprise as tackling is to football or speeding is to auto racing? The Department offers no answer at all. [Italics in original; citation omitted.]
Rather than engage the actual debate between the majority and Kavanaugh over Pelron, Gerstein instead maligns Kavanaugh for allegedly “show[ing] a stunning lack of understanding of what it means to be a working person whose livelihood depends on a job she has little ability to affect.” Indeed, her entire piece is little more than a series of disjointed slurs.