OSHA Ethics, Inspection Liability, and the Irving Case

Introduction

The provision of proper working safety conditions is the dual responsibility of the employer and of the state-sponsored Occupational Safety and Health Administration (OSHA), both of which must uphold legislatively constructed standards intended to prevent injury, reduce workplace hazards, and diminish the risk of workplace accidents. Before proceeding toward an examination of the case in question, there is some value in understanding the bureaucratic structure of OSHA, which enters directly into a discussion of the legal implications of the subject.

In 1970, Congress passed the Occupational Safety and Health Act, which "established for the first time a nationwide, federal program to protect almost the entire work force from job-related death, injury and illness" (McLaury, 1). This prompted the 1971 creation of OSHA, which was charged with the responsibility of developing a comprehensive plan toward that end, a means of administering the plan, and the tools with which to reinforce its regulatory demands.

A key responsibility of OSHA is its oversight of the manner in which organizations contend with industrial machinery, volatile equipment, and potentially hazardous materials. OSHA requires that organizations handling heavy machines, flammable matter, unstable chemical compounds, or active explosives must maintain well-established standards for the proper treatment and safe housing of working equipment and materials within correctly designated areas of their facilities.

Background and Stakeholders

This context provides a firm basis for the discussion that follows, which proceeds from a 1979 case concerning the administration of proper safety inspections in a shoe-branding factory. The primary stakeholders in this legal dispute are framed by an incident involving a piece of industrial machinery that was required to be approved by OSHA for adherence to proper safety standards.

In this scenario, Gail Merchant Irving is the plaintiff and a primary stakeholder. She was injured by a piece of machinery used to mark shoes with a company logo. The injury occurred during regular use when her hair became entangled in the gears of the machinery, causing her severe injuries. Another key stakeholder is the Somersworth Shoe Company, which was Irving's employer at the time of the accident and therefore responsible for compliance with all safety requirements specified either by law or by OSHA inspection findings.

Additional stakeholders are those who sought to defend themselves against the suit brought by Irving: the federal OSHA agency, which is the target of the suit, and the two OSHA inspectors who had previously inspected the facility. In both 1975 and 1978, the inspectors provided what was expected to be a full inspection of the factory, including the machine in question, and found no compliance failures. Following the incident that caused Ms. Irving's injuries, inspectors returned and established that the machine did not adhere to proper safety standards.

The ethical responsibility here appears to fall upon the OSHA inspectors and the broader agency, as they constitute the last line of review with respect to worker safety. Any indication that a deficient or insufficiently thorough inspection contributed to Ms. Irving's injuries calls into question the ethical orientation of the inspectors regarding their legal and professional responsibilities.

Legal Analysis

The case was heard by the First Circuit Court of Appeals after Ms. Irving's initial suit was quickly dismissed at the district court level. The dismissal was based on the legal premise that her suit against the United States failed to pass the "permissible use of judgment" clause established as precedent through the 1988 case of Berkovitz v. United States. This precedent provides protection for a state or federal agency when evidence illustrates that specific agents acted within their own discretion in failing to conduct required and thorough inspections. This became the primary legal question in the case. As the case review states, "if the district court ultimately finds that the OSHA employees had discretion in conducting their inspection and that the discretion involved considerations of policy, it should grant the government immunity" (Fairchild, 6).

This constructs the primary legal defense available to the government. The legal record suggests that courts are inclined toward government immunity, as illustrated by the immediate vacating of the district court from hearing the case — prompted by the assumption that government immunity was beyond dispute. This bias is underscored by the further requirement that any plaintiff bear the burden of proving that mistakes did not arise from individual inspector discretion rather than agency-wide failure, for reasons of political consistency. As the case review notes:

"Even when the challenged action is the product of an employee's permissible use of judgment, a suit is barred only if that judgment 'is of the kind that the discretionary function exception was designed to shield. The basis for the discretionary function exception was Congress' desire to prevent judicial second-guessing of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.' Id. at 536–37, 108 S.Ct. at 1959 (quoting Varig Airlines, 467 U.S. at 814, 104 S.Ct. at 2764)." (Fairchild, 11)

This helps to demonstrate that the burden of proof in a suit against a government agency such as OSHA lies with the plaintiff. The legal implication is that exposing the government to such vulnerability would impose legislative analysis upon the judicial branch in a manner not intended by the constitutional separation of powers. This is the primary contribution of the Berkovitz precedent to this discussion.

Much of the case analysis proceeds from the findings in Berkovitz. Applying that precedent, the central question is not whether inspections failed — it is clearly evident that they did — but rather whether that failure can be attributed to the individual inspectors or to the agency as a whole. If it can be attributed to the agency, Irving's case has merit. If it can be attributed to the inspectors, the government is immune from suit, and the fate of the inspectors rests with the agency itself.