Intentional disregard: remedies for the toxic workplace.

• Author: Gorton, Michelle

1. INTRODUCTION

   The Oregon Court of Appeals recently sheltered an employer from tort liability after he knowingly subjected his employees to hazardous levels of toxic fumes.(1) The employee-plaintiff, Mr. Davis, worked as an automobile painter for a body shop.(2) He was regularly exposed to toxic fumes without proper ventilation or protection, and over time, he began to suffer headaches, respiratory problems, lightheadedness, and memory loss.(3) Mr. Davis and other employees repeatedly complained to their employer,(4) and Mr. Davis says he was repeatedly assured the problem would be fixed.(5) Safety inspectors also warned the employer about the dangerous conditions of employment at his shop.(6) Instead of following the inspectors' orders to fix the situation, the employer lied to inspectors and actively concealed safety violations from them on several occasions.(7)

   The Court of Appeals found the employer refused to undertake adequate safety measures in the interest of saving money.(8) The court also found the employer knew that, if it did not provide safety protection, at least some employees were "certain to suffer severe injury."(9) However, the court did not believe such conduct met the "deliberate intention"(10) requirement necessary to allow Mr. Davis a remedy outside of the workers' compensation system.(11) Because the employer did not "wish to injure" Mr. Davis when it failed to provide adequate protection from the toxic fumes but instead only intended to save money, Mr. Davis could not pursue a civil remedy for his injuries.(12)

   Mr. Davis eventually developed organic brain damage as a result of his employer's choice to cut costs rather than to protect employees' health.(13) The employer suffered no penalty for his action (other than perhaps a slight increase in his worker's compensation insurance premiums) nor was any deterrent established to prevent future misconduct.(14) Mr. Davis did not recover any damages, even though his brain damage easily could have been prevented, but only received the statutory amount that the state workers' compensation laws provided for his injury.(15)

   Although the result in Mr. Davis's case may seem extreme, it is consistent with other jurisdictions' interpretations of the "deliberate intent" exception to the workers' compensation system.(16) Such interpretations illustrate the inadequacy of the current workers' compensation system in dealing with avoidable toxic exposures in the workplace.

   Workers' compensation is the major scheme for compensating employee workplace injuries. Supplementing this system are several federal regulatory schemes designed to prevent accidents before they occur. The most inclusive of these is the Occupational Safety and Health Act (OSH Act),(17) the purpose of which is to "assure so far as possible [to] every working man and woman in the Nation safe and healthful working conditions."(18) Neither workers' compensation nor federal safety laws adequately protect today's worker from harmful, yet preventable, toxic exposures.

   In particularly egregious cases, especially those affecting a number of workers, an employer may be held criminally liable.(19) Criminal sanctions are available under OSH Act(20) and under state criminal laws.(21) Such sanctions, however, are fairly rare.(22)

   So far, attempts to protect workers have been ineffective in encouraging employers to provide a safe workplace and in deterring employers from compromising safety to save money.(23) Also, the system does not always adequately compensate workers for the results of toxic exposures when the workplace is not safe.(24) This is increasingly alarming in light of the numerous new toxic substances that are being introduced into our lives and are being used in our workplaces every year.(25) Toxic exposures occur frequently in the workplace, but these exposures and the illnesses that result from them are not well documented.(26) Toxic substances often appear first in the workplace. Their harmful effects, therefore, commonly are not discovered until the symptoms appear in workers.(27) The probability that workers may suffer more frequent or more extreme toxic exposures than the general public magnifies the injustice of not allowing workers the same remedy as the general public for affirmative harmful conduct.(28)

   The workers' compensation system, the Occupational Safety and Health system, and the criminal system have not been adequately protecting workers from the kind of employer conduct that Davis illustrates. More shocking is the reality that problems with the various schemes tend to make it most profitable to act in the same manner as the employer in Davis; the message to employers seems to be "don't bother to buy safety equipment because there is little risk of suffering any consequences for not doing so." Not only are employees and their families damaged by such a system, but scrupulous employers who must compete with unprincipled employers are hurt as well.

   This Comment examines the problem of employers allowing and effectuating toxic exposures in the workplace and the lack of adequate deterrence for such conduct. Part II looks at the workers' compensation system. Part III discusses the OSH Act. Part IV explores state criminal sanctions. Part V briefly examines tort liability. As a partial solution to some. of the problems noted in Parts II-V, Part VI urges a limited expansion of the situations in which employees can move outside the workers' compensation system and pursue civil damages. The legal system should allow employees to sue employers who 1) know their employees are exposed to dangerous toxic substances; 2) fail to provide adequate, mandatory health and safety protection; and 3) know harmful exposures will continue and employees will likely become sick. This limited expansion would lead to a more fair result for both employees and scrupulous employers.

2. WORKERS' COMPENSATION

   1. Development of the Workers' Compensation Scheme

      Prior to the enactment of workers' compensation laws, workers suffering from job-related injuries had difficulty paying medical bills and surviving without wages.(29) Compensation came, if at all, after months or years spent in litigation.(30) Often the worker did not have the capability or wherewithal to obtain legal representation.(31) Even when a worker did hire a lawyer and sued for compensation for her injuries, several legal doctrines stood in her way. Known as the "unholy trinity,"(32) the combination of contributory negligence,(33) assumption of risk,(34) and the fellow-servant rule(35) made it difficult for workers to win cases against their employers. Often the injured worker did not recover anything from her employer,(36) even though workplace injuries were frequently attributable to employer negligence or conditions at the job site.(37)

      Hardships to workers under the common law system continued to increase as the country became more industrialized and the frequency of workplace injuries increased.(38) Employees were often injured at work and needed a quick and sure recovery for their injuries.(39) At the same time, as courts began ruling in favor of the increasing number of injured workers who came before them, employers wanted limited and predictable liability for workplace injuries.(40) Just after the end of the nineteenth century, states began creating commissions to investigate the extent of the problem and to develop proposed solutions.(41)

      Early workers' compensation statutes that covered only certain hazardous employments were initially held unconstitutional by most state courts.(42) In 1917, the Supreme Court held for the first time that workers' compensation laws were indeed constitutional.(43) After this, states quickly began enacting their own versions. By 1920, the great majority of states had workers' compensation statutes, and by 1963, all fifty states had such statutes.(44)

      Workers' compensation laws--most of which remain relatively unchanged today--are commonly thought of as a "bargain" between workers and employers.(45) Workers waive their right to sue employers at common law(46) in return for the assurance of sure and swift compensation for injuries that arise out of the course of their employment.(47) The laws provide workers with a percentage of their lost wages, medical expenses, and rehabilitative services.(48) In the case of permanent disability, workers are given a lump sum set by statute.(49) Employers agree to guarantee no-fault recovery for injuries that occur at work.(50) In return, they gain the security of limited liability(51) because compensation under the statute is generally the exclusive remedy for injured workers.(52) Under the workers' compensation system, most employers must obtain workers' compensation insurance,(53) which allows them to budget for worker injuries in a way that they could not have under the common law system due to the unknown amount of potential damage awards.(54)

   2. Characteristics of the Workers' Compensation System

      Workers' compensation statutes focus on the connection between the injury and employment rather than on fault.(55) Most statutes, however, include a "deliberate intent" or "intentional injury" exception.(56) This exception allows a worker who was injured by her employer's deliberate and intentional act to look to tort law in addition to workers' compensation for a remedy.(57) The exception exists because workers' compensation was not meant to shield employers from liability when they intentionally injure their employees. Some authors believe workers' compensation systems aim to compensate accidents at the workplace, and an intentional act is by its very nature not accidental.(58) Others theorize that when an employer intentionally injures his or her employee, the employer steps out of the employer-employee relationship and the workers' compensation laws no longer apply.(59) Still others note a job does not generally entail the risk that the employer will...