Following a two-week trial, SeaWorld has lost its legal battle to overturn OSHA safety citations, and will have to change policies involving its employees and the six-ton orca whales it keeps in captivity in order to entertain park visitors.
The company was cited after the gruesome death of Dawn Brancheau, an orca trainer, in February, 2010. SeaWorld spectators watched in horror as Brancheau was dragged under and dismembered by an orca named Tilikum. At a hearing afterward, SeaWorld’s employees said the whale showed no indications that he might engage in aggressive behavior, and that Ms. Brancheau correctly followed all of SeaWorld’s protocols during her interaction with him.
OSHA cited the General Duty clause -- which states that an employer must provide a workplace that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to employees -- in the trainer’s death.
SeaWorld argued that because its whales are so well trained, allowing workers into tanks with these whales during performances is not recognized as a hazard to the workers, and therefore nothing needs to be done to protect the workers in the future.
The Occupational Safety and Health Review Commission judge hearing the case rejected that argument. "SeaWorld insists it did not recognize the hazard posed by working in close contact with killer whales. The court finds this implausible," he wrote. "No reasonable person reading these comments would conclude that SeaWorld was unaware that working in close contact with killer whales during performances creates a hazard for its trainers."
Senior SeaWorld trainer Lynne Schaber testified that when employees start work at Shamu Stadium, they are given what’s known as the “Tili Talk,” in which they’re informed of the human deaths that involved Tilikum and are warned that “if you found yourself in the pool with Tilikum, you might not survive.”
The judge noted that SeaWorld attempted to distance itself from the other SeaWorld parks in order to minimize evidence that working closely with killer whales is a recognized hazard, since many aggressive interactions between killer whales and trainers – some fatal -- occurred at other parks.
“The record establishes, however, that the operations of all of the parks are intertwined. “
"This is a win for the employees of SeaWorld. OSHA's intent has been to ensure the safety and health of employees who work with the corporation's killer whales in performances," said OSHA chief Dr. David Michaels. "Within 10 days after the judge's order becomes final, the company will now have to abate the hazards, so workers will not have to risk their lives to do their jobs."
Michaels said the court’s decision helps counter the “careless worker” myth.
“Companies often argue that workplace injuries and fatalities are caused by workers doing something wrong, as opposed to being caused by hazardous conditions.”
OSHA was represented by attorneys from the Atlanta Office of the Solicitor of Labor.
