Supreme Court nominee JudgeBrett Kavanaugh meeting with Senator Lindsey Graham (R-SC), on July11, 2018.(Photo:  Diego M. Radzinschi/ ALM)

A SeaWorld trainer drowned in 2010 when a killer whale pulledher beneath the water during a live show, marking the third fatalattack during a performance and sparking an investigation intoemployment risks at the Florida theme park.

Federal occupational safety regulators faulted SeaWorld ofFlorida LLC for exposing its trainers to recognized hazards, andthe case made its way to the U.S. Court of Appeals for the D.C.Circuit. The court in 2014, ruling for the OccupationalSafety and Health Administration, said SeaWorld failed to takesteps to protect employees from the hazards posed by close contactbetween trainers and killer whales. The appeals panel was sharplydivided.

Writing in dissent was Brett Kavanaugh, the longtime D.C.Circuit judge who is now poised to join the U.S.Supreme Court. His SeaWorld dissent and other cases siding with theemployer telegraphs how he might approach labor and employment issues presented to the SupremeCourt. The majority's decision, Kavanaugh warned, could allow OSHAto regulate Nascar races and NFL games.

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The broad question the case raised, as Kavanaugh put it: “Whenshould we as a society paternalistically decide that theparticipants in these sports and entertainment activities must beprotected from themselves—that the risk of significant physicalinjury is simply too great even for eager and willing participants?And most importantly for this case, who decides that the risk toparticipants is too high?”

The majority found there was ample evidence showing SeaWorldrecognized its precautions were not adequate to prevent harm ordeath to trainers, and that employees could be protected withoutharming the business.

Advocates for business interests would find comfort in awould-be justice who could move the court from reliablypro-business to more resoundingly so. Worker advocates, meanwhile,are sounding alarms as Kavanaugh's nomination, to succeed JusticeAnthony Kennedy, advances in the U.S. Senate.

Sharon Block, a former Obama-era National Labor Relations Boardmember, said in a post at the blog On Laborthat Kavanaugh's D.C. Circuit record “demonstrates consistentsupport for the interests of employers and a lack of concern forthe interests of workers and the government agencies” that areprotecting worker rights.

“What stands out about Kavanaugh's record in labor cases is notjust his consistency in ruling for employers over workers, but theseemingly unnecessary positions he sometimes takes when doing so,”Block wrote.

Kavanaugh's critics point to myriad rulings to argue he tends tofavor employers over employees. In the case American Federation of Government Employees v.Gates, Kavanaugh in 2007 said thesecretary of defense was empowered to abolish collective bargainingaltogether. More recently, in 2012, Kavanaugh dissented in the caseMiller v. Clinton, wherethe majority revived a State Department employee'sage-discrimination claims.

“To be sure, Congress could (and perhaps should) change the lawand bar the State Department from imposing mandatory retirement inthese kinds of circumstances,” Kavanaugh wrote. He added: “But ourjob is to apply and enforce the law as it is written.”

Kavanaugh's SeaWorld dissent dings regulators

Kavanaugh's dissent in the SeaWorld case opened with a laundrylist of professions that carry risk: “Football. Ice hockey.Downhill skiing. Air shows. The circus. Horse racing. Tiger taming.Standing in the batter's box against a 95 mile per hour fastball.Bull riding at the rodeo.” (And this was to name only some, asKavanaugh carried his point a bit further.)

“The participants in those activities want to take part,sometimes even to make a career of it, despite and occasionallybecause of the known risk of serious injury. To be fearless,courageous, tough—to perform a sport or activity at the highestlevels of human capacity, even in the face of known physicalrisk—is among the greatest forms of personal achievement for manywho take part in these activities,” Kavanaugh wrote. “Americanspectators enjoy watching these amazing feats of competition anddaring, and they pay a lot to do so.”

He said that although safety precautions must be in place, theLabor Department is not the proper body to decide these issues.Regulators, he said, do not have the authority to make thesedecisions.

“Why isn't close contact between trainers and whales asintrinsic to SeaWorld's aquatic entertainment enterprise astackling is to football or speeding is to auto racing? Thedepartment offers no answer at all,” Kavanaugh wrote.

Judge Judith Rogers, writing for the majority, turned downKavanaugh's notion that OSHA had an “all or nothing” regulatorydemand on its shoulders—the idea that the agency could not regulateSeaWorld if it did not also police the NFL.

“No principle of law requires a court, when reviewing a citationbased on specific facts relating to one of several kinds ofentertainment shows put on by a single employer, to reach beyondthat citation and decide the hypothetical application of thestatute to another industry,” Rogers wrote.

Rogers said at one point in her ruling: “We note, however, thathad Congress intended all unsafe and unhealthy performances in theentertainment industry to be beyond the scope of employeeprotection, it could have included such an exemption in theOccupational Safety and Health Act, and it did not.”

A lawyer for SeaWorld, Eugene Scalia of Gibson, Dunn & Crutcher,was not reached for comment.

Fisher Phillips partner RichardMeneghello said Kavanaugh's appointment to the Supreme Court wouldsolidify the pro-business leanings of the Roberts Court.

“This court will go from a reliably pro-business court to beingsolidly pro-business. It will be an uphill battle for employees towin many cases, if he gets confirmed,” Meneghello said. “He looksfor ways to rule for employers.”

Brian Markovitz of Joseph, Greenwald & Laake, who representsvictims of workplace injuries, predicted Kavanaugh's arrival at theSupreme Court—if he's confirmed—would usher in more 5-4rulings.

“That's the real travesty of this situation. There was a pointin time where the court viewed and based decisions on judicialscholarship and thought,” he said. “Now, it's almost fullpolitics.”