Trainer with Orca in SeaWorld, San Diego
Trainer with Orca in SeaWorld, San Diego (David Bařina via Wikimedia)

A federal appeals court in Washington on Friday upheld an agency’s findings that SeaWorld violated federal law by exposing killer whale trainers to hazardous working conditions.

The case involved the 2010 death of SeaWorld of Florida LLC trainer Dawn Brancheau, who was killed when Tilikum, a killer whale, pulled her into the water during a performance. Labor officials issued three citations to SeaWorld, and the company challenged one that found a “willful” violation of federal law requiring employers to protect against “recognized hazards” in the workplace that could cause “death or serious physical harm.”

A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit found “substantial evidence” that SeaWorld recognized working with killer whales was dangerous, regardless of precautions SeaWorld said its trainers took when working with Tilikum and other killer whales.

“Statements by SeaWorld managers do not indicate that SeaWorld’s safety protocols and training made the killer whales safe; rather, they demonstrate SeaWorld’s recognition that the killer whales interacting with trainers are dangerous and unpredictable and that even senior trainers can make mistakes during performances, and the managers repeatedly urged caution in working with the killer,” Judge Judith Rogers wrote for the majority.

In a statement, SeaWorld said it was “disappointed” with Friday’s ruling and hadn’t decided if it would appeal the panel’s opinion. Eugene Scalia of Gibson, Dunn & Crutcher argued for the company.

“Following the tragic death of Dawn Brancheau in 2010, we voluntarily deployed several new safety measures, including removing trainers from the water during shows,” SeaWorld said. “In so noting in its opinion, the court acknowledged that there will still be human interactions and performances with killer whales and, according to the court, the decision simply requires that we continue with increased safety measures during our shows.”

The Labor Department released a statement saying it was “pleased that the courts have consistently upheld our position that killer whales pose a danger to employees who are not adequately protected, and further upheld the rights of workers in this country to return home safe and healthy each day.”

The safety fixes proposed by labor officials, such as requiring a physical barrier between trainers and the killer whales, were feasible, the court said. “The remedy imposed for SeaWorld’s violations does not change the essential nature of its business. There will still be human interactions and performances with killer whales; the remedy will simply require that they continue with increased safety measures,” Rogers wrote.

The majority was unpersuaded by SeaWorld’s argument that trainers accepted the risks that were part of their job. SeaWorld’s position, Rogers wrote, “contravenes Congress’ decision to place the duty to ensure a safe and healthy workplace on the employer, not the employee.” Chief Judge Merrick Garland joined Rogers’ opinion.

In a dissenting opinion, Judge Brett Kavanaugh began by listing “extremely dangerous” activities individuals voluntarily do—sometimes because of the risk involved—from football and ice hockey to bull riding and “daredevil motorcycle jumps.” The case law recognized that certain activities, although dangerous, were among the “normal activities” essential to certain industries and couldn’t be penalized under the law, he said.

“In the sports and entertainment fields, the activity itself frequently carries some risk that cannot be eliminated without fundamentally altering the nature of the activity as defined within the industry,” Kavanaugh wrote. “Tackling is part of football, speeding is part of stock car racing, playing with dangerous animals is part of zoo and animal shows, and punching is part of boxing, as those industries define themselves.”

Labor officials had “stormed headlong into a new regulatory arena” and opened the door to regulation of sports and entertainment industries “in a way that Congress could not conceivably have intended in 1970 when giving the agency general authority to ensure safer workplaces,” Kavanaugh wrote. He said the department’s case rested on arbitrary distinctions between working with killer whales and other activities officials said they wouldn’t try to regulate, such as tackling in football.

Rogers responded to Kavanaugh in her opinion, saying his “parade of horribles” was irrelevant. “Many traditional industries can be extremely dangerous to their employees: construction, metal pouring, logging, welding, firefighting, roofing, electrical power line installation, handling explosives. Yet these industries have been regulated pursuant to the Occupational Safety and Health Act, notwithstanding that employers could claim their employees were also ‘willing participants,’ ” she wrote.

Rogers also said Kavanaugh wrongly conflated the regulation of sports with the type of entertainment show at issue in the SeaWorld case.

“No one has described SeaWorld’s killer whale performances as a ‘sport,’ and a legal argument that the ‘sports industry’ should not be regulated by OSHA can be raised when and if OSHA attempts to do so,” she said (emphasis in original).

Updated at 3:51 p.m.

Contact Zoe Tillman at ztillman@alm.com. On Twitter: @zoetillman.