Court Has Upheld OSHA's Finding Against SeaWorld

After trainer Dawn Brancheau's death in February 2010, the OSHA investigation into the incident resulted in two citations laid against SeaWorld for violating the General Duty Clause required of all U.S. employers. Brancheau was killed when Tilikum, a captive male orca at the Orlando, FL facility, pulled her under water and held her there until she drowned. One of the violations was for allowing trainers to interact with Tilikum specifically, who has been connected to other deaths during his captivity. The other violation was for allowing trainers to interact with captive orcas in general.

SeaWorld appealed OSHA's requirements that trainers stay out of the water, reducing "close contact" with the orcas, who are considered to be a recognized hazard. Trainers are now required to use protective barriers when interacting with orcas out of the water, as well. A U.S. Appeals Court said that SeaWorld's concern about the impact these changes could have on their operations do not excuse it from its duty to protect its employees from recognized hazards. Judge Judith Rogers, one of the three judges on the panel, said:

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.

Judge Brett Kavanaugh dissented, saying that people who work in sports and entertainment fields that are risky are aware of those risks, and voluntarily participate in spite of them. He said that OSHA has "departed from tradition and stormed headlong into a new regulatory area."

This issue has gained a lot of public attention due to the recent documentary Blackfish, which has generated a lot of discussion not only about the safety of the people who work with orcas, but about whether or not orcas should even be kept in captivity.