Here, "the governing statute and formal regulations give OSHA wide freedom at higher agency levels to make decisions and formulate programs concerning the inspection of workplaces. It does not follow, as the government seems to argue, that an employee who performs an inspection has the type and breadth of discretion which makes the inspection a discretionary function." (Fairchild, 23)
This would implicate political imperatives in shaping an OSHA policy of legal responsibility that should instead by determined by real and accurate field-compiled safety requirements. Any indications that a failed safety inspection might have contributed to the presence of the offending machine is also a support for the argument that more careful reflection must be engaged of Irving's testimony. Using the discretion clause, no such testimony is even heard. Indeed, according to the details of the case, "the District Court did not analyze the evidence and made no findings concerning OSHA's policy in conducting its "general inspections," the degree of discretion allowed the compliance officers, or whether such discretion as existed was grounded in social, economic or political policy. Instead, the court simply relied upon the Fifth Circuit's decision in Galvin, which asserted that the discretionary function exception would have prevented the court from hearing a suit against the United States for OSHA's alleged failure to inspect or negligent failure to detect a dangerous condition, notwithstanding Berkovitz, because OSHA itself had violated no mandatory statute or regulation." (Fairchild, 24)
Ethical Decision Factors To Consider:
Unfortunately, this decision fails numerous ethical tests, not the least of which is the service of Irving's interest and the proper compensation provision for her injuries. As the stakeholder with the greatest interest in the outcome of the decision, her claims are removed from due consideration in the legal scenario portrayed by the district court.
A more ethical perspective, ironically, proceeds from OSHA itself, though decidedly not for reasons of ethicality. In the interest of protecting itself from liability, OSHA attempted to foist responsibility for inspection failures upon its inspectors. Accordingly, "Richard Amirault, the OSHA Area Director in New Hampshire, testified that 'As far as humanly possible, [the compliance officers] were supposed to cover the work place,' to 'look at every operation,' and 'to observe any place where an employee works.'" (Fairchild, 27) This would be to argue that the OSHA provided its officers with all the necessary directives to carry out their responsibilities as inspectors and that any failure to survey the entire workspace would have been an inspection failure attributable to the inspectors themselves and not the agency.
Though under Berkovitz this would seem to dismiss OSHA from responsibility, a more ethical examination suggests that if given the proper instructions and directives from OSHA, the offending machine was a safety failure that the inspectors can't have missed. This is to say that ethically, there is a responsibility which falls upon OSHA to ensure that all of its inspectors have been trained and equipped with the proper knowledge and qualifications to bear such discretion. Evidence indicates here that even were there to be accepted the condition that the discretion of inspectors resulted in a failure to observe certain safety violations, it was OSHA which bore the discretion of recruiting, hiring, training and informing its inspectors. An ethical lens does not allow us to look past this level of responsibility.
Recommended Corrective Action:
Ultimately, this would be the resolution at which the Court of Appeals would arrive. The view of the court would be that the if the agents had been instructed and trained properly, it is impossible that they would have allowed the offense in question. Rationally, it was found that the inspectors could not have possible had this discretionary authority as the offense was otherwise to glaring to be overlooked. Only an institutional failure of education could be held as responsible.
Thus, the recommended course of corrective action is to award Ms. Irving a settlement based on OSHA's liability and to impose a legal condition upon OSHA which demands stronger recruiting and training of inspectors. As a counterpoint to the discretion clause, this removes the unfair insulation of a government agency that shold legally and ethically be held responsible for grievances against it.
Fairchild, SCJ. (1990). 909 F2d 598 Irving v. United States. United States Court of Appeals: First Circuit.