Ergonomic Enemy

By Green, Joshua | The American Prospect, September 10, 2001 | Go to article overview

Ergonomic Enemy


Green, Joshua, The American Prospect


After a career of bashing workers' rights, Eugene Scalia may soon control them.

DEMOCRATS STILL REELing from the Bush v. Gore decision in December must have cringed when President Bush announced his choice for solicitor of the Labor Department. In April, Bush appointed Eugene Scalia, the 37-year-old son of Supreme Court Justice Antonin Scalia, to the number-three spot at Labor. The younger Scalia's nomination was no mere act of nepotism, like, say, the appointment of 28-year-old Strom Thurmond, Jr., as South Carolina's U.S. attorney, or the appointment of Kentucky Senator Jim Bunning's son to a federal judgeship, or even the appointment of Janet Rehnquist, daughter of Chief Justice William Rehnquist, as the inspector general of the Health and Human Services Department. Scalia's nomination is on an entirely different scale.

As a labor lawyer at Gibson, Dunn and Crutcher, Eugene Scalia specialized in representing management in labor disputes. His area of expertise: downplaying the importance of worker safety, especially the dangers of repetitive-stress injuries. Scalia made his name fighting ergonomics rules like the ones enacted last year by the Clinton administration and recently repealed under Bush. "While the nomination of Scalia reflects Bush's affinity for children of powerful people, [it] also seems to reflect the administration's anti-regulatory priorities," says Marcia Kuntz, legislative director of the Alliance for Justice. "In fact, unlike Strom Thurmond, Jr., Scalia is already completely in sync with what the administration is trying to do. In a very narrow sense, you could even say he's qualified."

But Scalia has done more than just advocate his clients' opposition to ergonomic standards: Along with Baruch Fellner, another partner at Gibson, Dunn, he has emerged as the leading architect of the anti-ergonomics movement. Scalia refers to repetitive-stress injuries, which afflict 600,000 American workers annually, as "junk science," "quackery," and "strange." Though ergonomics is a well-documented science, he paints repetitive-stress injury as a "psychosocial issue"--in effect, calling those who suffer from it fakers. "The evidence is clear," Scalia has written, "that the employees most likely to complain of musculoskeletal discomfort are those who do not like their jobs." He has also advocated exempting unionized workplaces from OSHA inspections, to "free" workers from the "cigar-chomping, rough-and-tumble world of labor-management relations."

Scalia is a now familiar type in the Bush administration: a policy assassin who's built a career fighting a specific set of regulations and finds himself appointed to a top position in the very agency he's long opposed. Says one union official of Scalia: "He's the Labor Department's James Watt."

AS SOLICITOR, SCALIA WOULD BE the top lawyer at Labor, overseeing a team of more than 500 attorneys across the nation who administer and enforce labor regulations in areas ranging from mine safety to pension issues. The labor solicitor has broad influence to determine how laws are interpreted, how vigorously they're enforced, which cases to prosecute, and also which to ignore. Unlike their counterparts at other federal agencies, Labor Department lawyers have the authority to litigate cases without Justice Department clearance. And, of course, the solicitor has considerable influence over the issue of ergonomics.

Scalia's nomination was particularly troubling to organized labor because it came in the wake of a pledge by Labor Secretary Elaine Chao to address the ergonomics issue (a promise she made shortly after Congress repealed the Clinton standards). "The Bush administration could not possibly have found anyone who is more vehemently against regulation and enforcement of ergonomic hazards than Eugene Scalia," says Peg Seminario health-and-safety director of the AFL-CIO.

Scalia first took up the issue in 1992 for United Parcel Service, which was trying to fend off federal regulation. …

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