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...
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