Who remembers Alphonse Maddin? Maddin came briefly to national attention in spring of 2017, after Donald Trump appointed Neil Gorsuch to the supreme court. Maddin was a truck driver and the central character in one of Gorsuch’s worst opinions as a circuit court judge. His story is one of the rare prominent examples of a vast, hidden world of American injustice: danger in the workplace.
Maddin was driving a truckload of meat across the Illinois prairie in the winter of 2009 when the brakes on the trailer of his vehicle froze. As he waited for his company’s road service to come fix the trailer brakes, he found that the heat in the truck’s cab was also broken. Maddin fell asleep in the sub-zero temperature, and when he woke up several hours later, the road service had not yet arrived. Parts of his body were going numb, his speech was slurred, and the company told him only to “hang in there”. So Maddin unhitched the immobilized trailer from the still-drivable cab of the truck and drove to safety. Although he soon returned to pick up the cargo and complete the job, his employer, TransAm, still fired him, and Maddin sued.
While the other two judges on the panel ruled in Maddin’s favor, the future supreme court justice dissented. The statute, Gorsuch pointed out, only protects workers who refuse to operate equipment out of safety concerns. By unhitching the trailer and driving the cab away, Maddin hadn’t refused to operate the equipment, but had rather hijacked it for his own purposes – however sympathetic those purposes might be. “Imagine a boss telling an employee he may either ‘operate’ an office computer as directed or ‘refuse to operate’ that computer,” wrote Gorsuch. “What serious employee would take that as license to use an office computer not for work but to compose the great American novel? Good luck.”
Maddin won his case, but it’s Gorsuch’s world we’re living in. According to an AFL-CIO report, 5,190 workers died on the job in the United States in 2016. Another 50,000 to 60,000 die annually of occupational diseases, and nearly 4 million experienced work-related injuries or illnesses. This latter figure, according to the report, is a drastic underestimate, with the real figure likely between 7.4 million and 11.1 million injuries and illnesses per year.
While death and injury rates are much lower than they were before deindustrialization, they have begun to rise again in the last few years. Unsurprisingly, workers of color and immigrants are significantly likelier than white workers to be hurt, get sick, or die due to their jobs. Ominously, the frequency of injuries due to violence in the workplace has ticked up drastically in the last decade.
Workplace danger is spread across a far wider array of industries than is commonly believed. While the issue of occupational safety and health immediately calls to mind coal mines, oil rigs, and steel mills, lots of jobs will break a body. Hotel housekeepers, for example, frequently experience severe chronic pain, the result of repetitive stress from lifting mattresses and pushing heavy carts and vacuums. Particularly in non-union hotels, the number of rooms per shift can rise into the high teens or above 20 – a recipe for damage to the back, neck, and knees when repeated over time. And this is not even to mention the exposure of these workers to sexual harassment and assault – incidences of which may not even be considered within the category of occupational health and safety.
Similarly, workers in the healthcare industry – and particularly its sub-sector of nursing and residential care – experience high rates of workplace hazard. Workers in this sector are very vulnerable to violent injury, which was experienced by 3.5 out of every 1,000 in 2016. Healthcare workers, for similar reasons to hotel housekeepers, also suffer very high rates of musculoskeletal injury: the two industries generating the greatest gross number of days away from work due to such injury were the hospital industry and nursing and residential centers. And then there are the specifically biological hazards, such as needlestick injury and infections such as scabies, to which such workers are particularly likely to be exposed.
As one would expect, the Trump administration is taking steps to worsen all this. The administration has pushed for funding cuts to the training programs of the Occupational Safety and Health Administration (OSHA) and the National Institute for Occupational Safety and Health. It has put forward a coal executive to run the Mine Safety and Health Administration, and a FedEx executive to run OSHA – both of them longstanding opponents of workplace safety regulation. It has rolled back a rule requiring employers to keep accurate injury and illness records, and another requiring disclosure on these matters from would-be federal contractors. As the Guardian recently reported, there are plans in the works to deregulate the speed of production in meat processing plants, which will worsen safety conditions in an industry that already averages two amputations per week. “Every co-worker I know has been injured at some point,” one worker told the Guardian.
Progressives must become much more unforgiving of the violence of conservative governance
Meanwhile, workers not represented by unions have lost their right to accompany OSHA inspectors on their inspections. Though this last would seem on its face to matter more than it actually does, because inspection is mainly a hypothetical phenomenon anyway. OSHA and its state-level partners together inspected less than 1% of eligible American workplaces in 2017.
Gorsuch himself has played a role in the worsening of this situation in his brief time on the supreme court. In the recent Epic Systems case, he authored a majority opinion severely curtailing the latitude of employees to file class-action lawsuits. Given the weakness of our occupational safety and health code and enforcement, such actions are potentially an important tool for workers – and one employers may now more easily avoid.
But the weakening of the regulatory apparatus began some time before the Trump administration. A stunning 2015 ProPublica and NPR report showed that dozens of states have cut back workers’ compensation benefits in recent decades – by as much as two-thirds, in some cases. “Getting [workers] healed and back to work is the goal of our system,” explained one benefit-cutting legislator in Oklahoma – though there have been severe cuts and time limits applied to benefits to workers with permanent disabilities as well.
States have also curtailed the right of injured workers to choose their own doctor to evaluate them. The report tells the story of a North Dakota oil worker who lost an arm on the job, and whose doctor recommended a prosthesis with a movable hand. But he was forced to go to a different doctor, who instead recommended a hook. Meanwhile, the state insurance agency denying him a workable hand – and the ability to tie his shoe or hold his grandchild – actually invests any surplus it retains and repays it in dividends to employers. The North Dakota agency repaid nearly $1bn to employers in this way over the decade before the report.
There is, however, one occupation whose hazards have appeared frequently in debates of recent years: policing. The risk undergone by officers has been arguably the central rhetorical device in the white reaction against protests of police violence. But cops aren’t even in the top 10 for most dangerous jobs, and they’re in greater danger of dying in accidents (particularly car crashes) than from violent causes.
The risks of policing have been magnified by their association with white fear and rage. On the other hand, the dangers experienced by millions of workers every day on the job make little dent on public consciousness.
Alphonse Maddin, it should be said, is black – like so many of the workers of color who experience heightened vulnerability to premature death on their jobs. Now his nemesis Gorsuch sits on the bench, ready to condemn countless more to injury and death, and soon to be joined by another black-robed ghoul: Brett Kavanaugh.
In a 2010 occupational safety case initiated by an orca whale’s killing of a trainer at SeaWorld, Kavanaugh dissented from his court’s pro-OSHA ruling, instead taking SeaWorld’s side. He called the agency’s rules “paternalistic” and wrote, “The bureaucracy at the US Department of Labor has not traditionally been thought of as the proper body to decide whether to ban fighting in hockey, to prohibit the punt return in football, to regulate the distance between the mound and home plate in baseball.”
Most likely, the Democrats will oppose Kavanaugh gingerly on some bloodless procedural grounds. The right wing has felt no shame about playing up the dangers of policing to demonize its opponents; if progressives want to represent working people, they must become much more unforgiving of the violence of conservative governance. As the question is put in a classic labor song, “Money speaks for money, the devil for his own / Who comes to speak for the skin and the bone?”
Gabriel Winant is a historian. He is writing a book on care work and the Rust Belt