He announced, as a new test,“whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient[lewd or l
Trang 1The character or quality of being obscene; an act, utterance, or item tending to corrupt the public morals by its indecency or lewdness
Obscenity is a legal term that applies to anything offensive to morals and is often equated with the termPORNOGRAPHY Pornogra-phy, however, is a more limited term, which refers to the erotic content of books, magazines, films, and recordings Obscenity includes por-nography, but it may also include nude dancing, sexually oriented commercial telephone mes-sages, and scatological comedy routines U.S
courts have had a difficult time determining what is obscene This problem has serious implications, because if an act or an item is deemed obscene, it is not protected by theFIRST
Until the mid-nineteenth century and the Victorian era in Great Britain and the United States, sexually explicit material was not subject
to statutory prohibition The federal COMSTOCK
receipt of “obscene,” “lewd,” or “lascivious”
publications through the U.S mail U.S courts looked to the English case of Regina v Hicklin,
3 L.R.-Q.B 360 (1868), for a legal definition of obscenity The Hicklin test was “whether the tendency of the matter charged as obscenity is
to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall.” This test permitted judges to look at objectionable words or passages without regard for the work as a whole and without respect to any artistic, literary, or scientific value the work might have In 1930 Massachusetts courts declared both Theodore Dreiser’s novel An American Tragedy and D.H Lawrence’s novel Lady Chatterly’s Lover obscene An important break from Hicklin came in a lawsuit over the U.S publication of James Joyce’s novel Ulysses
Both at the trial andAPPELLATElevels, the federal courts held that the book was not obscene (United States v One Book Called “Ulysses,” 5 F
Supp 182[S.D.N.Y 1933], aff’d 72 F.2d 705 [2d Cir 1934]) The courts rejected the Hicklin test and suggested a standard based on the effect on the average reader of the dominant theme of the work as a whole
In 1957 the U.S SUPREME COURT retired the Hicklin test in Roth v United States, 354 U.S 476,
77 S Ct 1304, 1 L Ed 2d 1498 Justice William J
Brennan Jr stated that obscenity is “utterly without redeeming social importance” and therefore was not protected by the First Amend-ment He announced, as a new test,“whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to a prurient[lewd or lustful] interest.” The new test was applicable to every level of government in the United States
The Roth test proved difficult to use because every term in it eluded a conclusive definition The Supreme Court justices could not fully agree as to what constituted “prurient interest”
or what “redeeming social importance” meant Justice POTTER STEWART expressed this difficulty
at defining obscenity when he remarked,
“I know it when I see it” (Jacobellis v Ohio,
378 U.S 184, 84 S Ct 1676, 12 L Ed 2d 793 [1964])
The Supreme Court added requirements to the definition of obscenity in a 1966 case involving the bawdy English novel Fanny Hill
In Memoir v Massachusetts, 383 U.S 413, 86 S
Ct 975, 16 L Ed 2d 1, the Court concluded that to establish obscenity, the material must, aside from appealing to the prurient interest, be
“utterly without redeeming social value,” and
“patently offensive because it affronts contem-porary community standards relating to the description of sexual matters.” The requirement that the material be “utterly” without value made prosecution difficult Defendants pre-sented expert witnesses, such as well-known authors, critics, or scholars, who attested to the literary and artistic value of sexually charged books and films
The Supreme Court did make conclusive rulings on two other areas of obscenity in the 1960s In Ginzburg v United States, 383 U.S
463, 86 S Ct 942, 16 L Ed 2d 31 (1966), the Court held that “pandering” of material by mailed advertisements, designed to appeal to a prurient interest, could be prosecuted under the federal obscenity statute Even if the material in publisher Ralph Ginzburg’s Eros magazine was not obscene, the Court was willing to allow the government to punish Ginzburg for appealing
to his prospective subscribers’ prurient interest
In Stanley v Georgia, 394 U.S 557, 89 S Ct
1243, 22 L Ed 2d 542 (1969), the Court held that the First and Fourteenth Amendments
328 OBSCENITY
Trang 2prohibited making the private possession of
obscene material a crime
The failure of the WARREN COURTto achieve
consensus over the Roth test kept the definition
of obscenity in limbo Then in 1973, aided by
conservative justices Lewis F Powell Jr and
obscenity in Miller v California, 413 U.S 15, 93
S Ct 2607, 37 L Ed 2d 419 Burger explicitly
rejected the “utterly without redeeming social
value” standard:
The basic guidelines for the trier of fact must
be (a) whether the “average person, applying
contemporary community standards, ” would
find that the work, taken as a whole, appeals
to the prurient interest , (b) whether the
work depicts or describes, in a patently
offensive way, sexual conduct specifically
defined by the applicable state law, and (c)
whether the work, taken as a whole, lacks
serious literary, artistic, political, or scientific
value.
Burger noted that the new test was intended
to address ‘hard core’ sexual conduct,” which
included “patently offensive representations or
descriptions of ultimate sexual acts, normal or
perverted, actual or simulated
masturba-tion, excretory functions, and lewd exhibitions
of genitals.”
In 1987, the Supreme Court modified the
“contemporary community standards” criteria
In Pope v Illinois, 481 U.S 497, 107 S Ct
1918, 95 L Ed 2d 439, the Court stated that
the“proper inquiry is not whether an ordinary
member of any given community would find
serious literary, artistic, political, and scientific
value in allegedly obscene material, but
whether a reasonable person would find such
value in the material, taken as a whole.” It is
unclear whether the “reasonable person”
standard represents a liberalization of the
obscenity test
In 1989 the Supreme Court unanimously
held that the First Amendment’s guarantee of
free speech protected indecent, sexually
ex-plicit telephone messages (Sable
Communica-tions of California, Inc v FEDERAL
2829, 106 L Ed 2d 93) The Court ruled that a
federal law that attempted to ban
“Dial-a-Porn” commercial phone services over
inter-state telephone lines (Pub L No 100-297, 102
Stat 424) to shield minors from obscenity was
unconstitutional because it applied to indecent
as well as obscene speech The Court indi-cated, however, that obscene calls could be prohibited
Congressional attempts to prevent the Internet from being used to distribute obscene materials have been blocked by Supreme Court decisions The Communications Decency Act of1996 (CDA), codified at 47 U.S.C.A § 223(b),
as amended, 47 U.S.C.A § 223(b), was designed to outlaw obscene and indecent sexual material in cyberspace One section made
it a federal crime to use TELECOMMUNICATIONSto transmit “any comment, request, suggestion, proposal, image, or other communication which
is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication.”
and 20 other plaintiffs immediately filed a lawsuit challenging the constitutionality of the CDA’s provisions, especially the part of the CDA that dealt with indecent material In Reno
v American Civil Liberties Union, 521 U.S 844,
117 S.Ct 2329, 138 L Ed 2d 874 (1997), the Supreme Court recognized the “legitimacy and importance of the congressional goal of pro-tecting children from harmful materials,” but ruled that the CDA abridgedFREEDOM OF SPEECH
and therefore was unconstitutional The Court was most troubled by the CDA’s “many ambiguities.” The concern, in particular, was
Ambiguous language and shifting moves make obscenity laws difficult to interpret and to prosecute Courts must decide if the goods and services offered by an establishment violate
“contemporary community standards” or if they have “redeeming social value.”
AP IMAGES OBSCENITY 329
Trang 3that the act’s undefined terms indecent and patently offensive would provoke uncertainty as
to how the two standards relate to each other and just what they mean The vagueness of this content-based regulation, along with its crimi-nal pecrimi-nalties, led the Court to conclude that the CDA would have a “chilling effect” on free speech
In addition, the CDA did not deal with key parts of the Miller test One element from Miller, which was missing from the CDA, requires that the proscribed material must be
“specifically defined by the applicable state law.”
This, in the Court’s view, would have reduced the vagueness of the term“patently offensive.”
Another important element of the Miller test is the requirement that the material, “taken as a whole, lacks serious literary, artistic, political, or scientific value.” The Court found that this
“societal value” requirement allowed appellate courts “to impose some limitations and regu-larity on the definition by setting, as aMATTER OF LAW, a national floor for socially redeeming value.” The failure of the CDA to include this element meant that the law posed a serious threat to censor speech that was outside the statute’s scope
In 1998 Congress sought to address these deficiencies when it passed the Child Online Protection Act (COPA) COPA attempted to limit restrictions on pornographic material to communications made for commercial pur-poses Although Congress incorporated the Miller test in hopes that the law would pass constitutional muster, the ACLU and a group of on-line Web site operators challenged the constitutionality of COPA, arguing that it was overbroad In addition, the plaintiffs contended that the use of the community standards test would give any community in the United States the ability to file civil and criminal lawsuits under COPA The Supreme Court, in Ashcroft v
American Civil Liberties Union, 535 U.S 564,
122 S Ct 1700, 152 L Ed 2d 771 (2002), issued what many legal commentators considered to
be a murky decision that suggested the law might be overbroad It referred the case back to the district court for a full hearing on the merits
of the case
Congress tried again when it passed the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003,
117 Stat 650 The law focused on the pandering
of child pornography–i.e., the offering or
soliciting of supposed pornographic images The Supreme Court, in U.S v Williams, U.S. ,128 S.Ct 1830, 170 L.Ed.2d 650 (2008), upheld the statute The Court found that the law only“prohibits offers to provide and requests to obtain child pornography.” The law did not require the “actual existence” of CHILD
underlying material, the law targeted the “collat-eral speech that introduces such material into the child-pornography distribution network.” The material or purported material that could not be pandered tracked the holdings of the Court on material that lacked First Amendment protec-tion: obscene material depicting actual or virtual children engaged in sexually explicit conduct The statute also required a DEFENDANT to
“knowingly” pander material that the defendant believes was child pornography Therefore, if a defendant, through a mistaken description, leads another party to believe that the material is child pornography, and the defendant does not have the subjective belief that the material is child pornography, then there is no violation of this part of the law As to objections that the law could ensnare the unwary or the innocent, the Court dismissed them as “an endless stream of fanciful hypothesis.”
Obscenity challenges are not restricted to pornographic content In City of Erie v Pap’s A M., 529 U.S 277, 120 S Ct 1382, 146 L.Ed 2d
265 (2000), the Supreme Court moved from cyberspace toREAL ESTATEwhen it held that a city could prevent the location of a nude dancing club using its zoning law powers The Court ruled that the zoning ordinance did not violate the First Amendment because the government sought to prevent the means of the expression and not the expression itself
In 1994 Erie, Pennsylvania, enacted an ordinance that made it a crime to knowingly
or intentionally appear in public in a“state of nudity.” The Court held that nude dancing is
“expressive conduct” that “falls only within the outer ambit” of First Amendment protec-tion It based its analysis on the framework for content-neutral restrictions on SYMBOLIC
case, United States v O’Brien, 391 U.S 367, 88
S Ct.1673, 20 L Ed 2d 672 (1968) The first factor of the O’Brien test is whether the government regulation is within the constitu-tional power of the government to enact The Court concluded that Erie had the power to
330 OBSCENITY
Trang 4protect public health and safety The second
factor is whether the regulation furthers an
important or substantial government interest
The city based its ban on public nudity as a
way of combating the harmful secondary
effects associated with nude dancing The
preamble to the ordinance stated that Erie
City Council had, for more than 100 years,
expressed “its findings that certain lewd,
immoral activities carried on in public places
for profit are highly detrimental to the public
health, safety and welfare, and lead to the
debasement of both women and men,
pro-mote violence, public intoxication,
PROSTITU-TIONand other serious criminal activity.” The
Supreme Court found this an important
government interest The ordinance also
satisfied O’Brien’s third factor, that the
government interest is unrelated to the
suppression of free expression
Assessing whether an activity or object is
obscene, based on community standards, is
problematic, especially when community
values change over time For example, in the
case of the“cussin’ canoeist,” a Michigan man
was convicted, in 1999, for violating an 1897
state law making it illegal to use obscenities
and profanities while in public He had been
cited for loudly swearing while in a canoe on a
public stream However, the Michigan court of
appeals reversed his conviction in 2002 The
court struck down the nineteenth-century
statute, ruling that the law unquestionably
“operates to inhibit the exercise of First
Amendment Rights” (Michigan v Boomer,
250 Mich App 534, 655 N.W.2d 255 [Mich
App.2002])
Another sticking point in obscenity
prose-cutions involves the often overbroad
inter-pretation of what is obscene Since the 1990s,
state appellate courts have struck down laws
that made it criminally obscene for a parent to
photograph his or her own child playing in a
bathtub or running nude on a beach
Beginning in 2003 the Federal
Commu-nications Commission toughened its policy on
obscenity in television broadcasts It had a
long-standing policy against the use of
inde-cent language, but it did not prosecute
one-time occurrences The commission rethought
its position after presenters and
award-winners at a series of television awards shows
in 2002 and 2003 It made three significant
findings in changing the policy: (1) bleeping/
delay systems technology had advanced; (2) the F-Word and the S-Word always invoke a coarse excretory or sexual image, making it irrelevant whether a word was used as an expletive or a literal description; and (3) the new policy’s “contextual” approach to inde-cency was better than the previous “categori-cal” approach, which offered broadcasters virtual IMMUNITY for the broadcast of fleeting expletives
The FCC used the new policy in 2003, issuing a notice of apparent liability against the Fox network for allowing participants on two awards shows to use obscene language Fox and the other major networks challenged the policy, but the Supreme Court, in Federal Communications Commission v Fox Television Station, U.S. , 129 S.Ct 1800, L.Ed.2d
(2009), found the policy legitimate The Court left for another day whether the FCC policy was constitutional under the First Amendment
FURTHER READINGS Barron, Jerome, and Dienes, Thomas 2006 First Amend-ment Law in a Nutshell 6th ed St Paul, Minn.:
Thomson West.
Hixson, Richard F 1996 Pornography and the Justices: The Supreme Court and the Intractable Obscenity Problem.
Carbondale: Southern Illinois Univ Press.
Mackey, Thomas C 2002 Pornography on Trial: A Reference Handbook Santa Barbara, Calif.: ABC-CLIO.X
CROSS REFERENCES Censorship; Dworkin, Andrea; Federal Communications Commission; Freedom of Speech; MacKinnon, Catharine Alice; Mass Communications Law; Movie Rating; Theaters and Shows; X Rating.
OBSTRUCTION OF JUSTICE
Obstruction of justice is a criminal offense that involves interference, through words or actions, with the proper operations of a court or officers of the court
The integrity of the judicial system depends
on the participants acting honestly and without fear of reprisals Threatening a judge, trying to bribe a witness, and encouraging the destruc-tion of evidence are examples of obstrucdestruc-tion of justice Federal and state laws make it a crime to obstruct justice
Obstruction of justice in the federal courts
is governed by a series of criminal statutes
OBSTRUCTION OF JUSTICE 331
Trang 5(18 U.S.C.A §§ 1501–1517), which aim to protect the integrity of federal judicial proceed-ings as well as agency and congressional proc-eedings Section 1503 is the primary vehicle for punishing those who obstruct or who endeavor
to obstruct federal judicial proceedings
Section 1503 protects against interference with sitting judges and magistrates, empanelled grand jurors, and prosecutors It also prohibits interference with prospective jurors, dismissed jurors, prospective witnesses, and witnesses
The witnesses need not be under SUBPOENA or even ever contacted by the DEFENDANT or one acting for the defendant The law makes it a crime to threaten, intimidate, or retaliate against these participants in a criminal or civil proceeding In addition, section 1503 makes it illegal to attempt the BRIBERY of an official to alter the outcome of a judicial proceeding
Besides these specific prohibitions, section
1503 contains the omnibus clause, which states that a person who “corruptly or by threats of force, or by threatening letter or communica-tion, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice” is guilty of the crime of obstruction of justice This clause offers broad protection to the“due administra-tion of justice.” Federal courts have read this clause expansively to proscribe any conduct that interferes with the judicial process
Generally, the prosecution must establish three elements to prove the crime of obstruc-tion of justice under the federal statute: (1) that
a federal judicial proceeding was pending at the time of the alleged crime; (2) that the defendant knew of the proceeding or had a reasonably founded belief that the proceeding was pending;
and (3) that the defendant corruptly endeavored
to influence, obstruct, or impede the proceed-ing The knowledge element requires a low threshold of awareness by a defendant It goes
to awareness of the role being performed by the target of the defendant’s actions; all that need be known is that the intended acts could affect the participant’s role in the pending proceeding
Two types of cases arise under the omnibus clause: the concealment, alteration, or destruc-tion of documents; and the encouraging or rendering of false testimony Actual obstruction
is not needed as an element of proof to sustain a conviction The defendant’s endeavor to ob-struct justice is sufficient Endeavor has been
defined by the courts as an effort to accomplish the purpose the statute was enacted to prevent Courts have consistently held that endeavor constitutes a lesser threshold of purposeful activity than a criminal attempt
Federal obstruction of justice statutes have been used to prosecute government officials who have sought to prevent the disclosure of damaging information The WATERGATE scandal
of the 1970s involving President RICHARD M
Nixon’s top aides were convicted of conspiring
to obstruct justice by deceiving Congress during its investigation, including former attorney generalJOHN N.MITCHELLand White House aides John Ehrlichman and H R Haldeman Nixon himself faced three ARTICLES OF IMPEACHMENT, drafted by the Judiciary Committee in the U.S House of Representatives, for his role in Watergate One article called for Nixon’s
justice by attempting to cover-up White House involvement in the scandal To avoid impeach-ment by the full House, President Nixon resigned from office on August 8, 1974
A generation later, the full U.S House of Representatives approved two articles of im-peachment against President BILL CLINTON One
of the articles charged Clinton with obstruction
of justice for attempting to influence the testimony of former White House intern Monica Lewinsky, who had been asked to testify in various LEGAL PROCEEDINGS related to Clinton The roots of Clinton’s impeachment for obstruction of justice began in 1994, when Paula C Jones filed aSEXUAL HARASSMENTlawsuit against Clinton, alleging that Clinton had made unwanted sexual advances in a hotel room in
1991, when he was governor of Arkansas and she was a state employee Meanwhile, as early as
1995, Clinton began having an extramarital relationship with Lewinsky that lasted into
1997 In December 1997 Jones’s lawyers named Lewinsky as a potential witness in the sexual harassment lawsuit Lewinsky subsequently filed
that she had had sexual relations with the president
In January 1998 Clinton testified before
unequivo-cally denying that he had had an“extramarital sexual affair,” “sexual relations,” or a “sexual relationship” with Lewinsky On December 19,
1998, the House approved two articles of
332 OBSTRUCTION OF JUSTICE
Trang 6impeachment against Clinton, charging him
allegations that he had (1) lied under oath about
the nature of his relationship with Lewinsky,
(2) told Lewinsky to be“evasive” in her answers
to a federal grand jury, and (3) instructed his
personal secretary, Betty Currie, to go to
Lewinsky’s apartment to reclaim various gifts
that he had given her
The impeachment proceedings lasted about
a month, and the SENATE voted to acquit the
president on both counts, even though most
Republicans and Democrats believed that
Clinton lied under oath and tried to influence
the testimony of other witnesses Senator
Richard H Bryan (D-N.V.) explained: “The
president’s conduct was boorish, indefensible,
even reprehensible[but] It does not threaten the
republic.” In separate proceedings that
culmi-nated in 2001, the Arkansas Supreme Court
suspended Clinton’s license to practice law on
grounds that he had obstructed judicial process
during the Lewinsky investigation, a charge that
largely parallels the crime defined in the federal
obstruction of justice statute
FURTHER READINGS
Chao, Lydia 2009 “Obstruction of Justice.” American
Criminal Law Review 46 (Spring).
Roush, Corey, and Rishi Varma 1996 “Obstruction of
Justice ” American Criminal Law Review 33 (spring).
CROSS REFERENCES
Clinton, William Jefferson; Starr, Kenneth Winston.
OCCUPANCY
Gaining or having physical possession of real
property subject to, or in the absence of, legal right
or title
In a fire insurance policy, for example, the
term occupancy is used in reference to the
purpose to which the land or building is
devoted or adopted, as indicated in the policy
OCCUPATION
OCCUPATIONAL DISEASE
A disease resulting from exposure during
employ-ment to conditions or substances that are
detrimental to health (such as black lung disease
contracted by miners)
An individual suffering from an
occupa-tional disease can seek compensation for his or
her condition under WORKERS’ COMPENSATION
statutes or such federal legislation as the Black Lung Benefits Act of 1972, 30 U.S.C.A § 901
et seq Worker’s compensation statutes typically require that the worker contract the disease during the COURSE OF EMPLOYMENT; that the disease be peculiar to the worker’s job by virtue
of how it is caused and manifested or how job conditions result in a particular hazard, unlike employment in general; and that there be a substantially greater risk of contracting the disease or condition on the job than in general public experiences
Occupational diseases are defined and regulated by the states Occupational diseases may be defined in terms of“injury” or they may
be considered a disease, separate and distinct from a work injury For an occupational disease
to be compensable (considered for monetary compensation or reward) it must be a disease whose major contributing cause is work related
The state Workers’ Compensation Acts gener-ally define the term “occupational disease” or list compensable occupational diseases and often provide specific compensation or ranges
of compensation
OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
Under the OSH Act, 29 U.S.C.A §§ 651 et seq.,
a business that negligently jeopardizes the lives
or health of its workers commits a federal misdemeanor The OSH Act authorizes civil fines up to $10,000 for instances where employ-ers“willfully” expose workers to “serious” harm
or death Any act of CRIMINAL NEGLIGENCE can result in imprisonment of up to six months
The Occupational Safety and Health Act of
1970 (OSH Act) created the Labor Depart-ment’s Occupational Safety and Health Admin-istration (OSHA) to serve as the federal government’s workplace-safety watchdog, and the Occupational Safety and Health Review Commission (OSHRC) to rule on cases, forwarded to it by the Labor Department, of disagreements over the results of OSHA safety and health inspections The principal office of the commission is located in Washington, D.C
There are also three regional offices where commission judges are stationed
The Labor Department’s assistant secretary for occupational safety and health has responsi-bility for overseeing OSHA OSHA has its OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 333
Trang 7headquarters in Washington, D.C., and main-tains ten regional offices It develops and promulgates occupational safety and health standards and issues regulations that enforce
these standards The essence of OSHA is its inspection responsibility OSHA inspectors conduct investigations and inspections to deter-mine the status of compliance with safety and health standards and regulations If an inspector visits a work site and finds that the employer is not in compliance with OSHA regulations, the inspector issues a citation and proposes penalties
From its inception, OSHA has been a controversial agency Businesses have com-plained that OSHA regulations are often too bureaucratic, rigid, and hard to understand, making compliance difficult Organized labor,
on the other hand, has charged that OSHA is not diligent enough in enforcing the regulations During the administration of President
was reduced by 25 percent, making it even more difficult to investigate allegations of injuries In addition, President Reagan, byEXECUTIVE ORDER
No 12,291 in 1981, permitted OSHA to certify that a company was in compliance with safety and health standards by reviewing paperwork submitted by the company Upon entering office, President BILL CLINTON rescinded this executive order and increased the number of OSHA inspectors to near pre-Reagan levels OSHA standards and regulations touch every facet of workplace health and safety The regula-tions establish maximum levels of exposure to lead, asbestos, chemicals, and other toxic sub-stances, and they specify the proper safety gear for workers For example, construction workers who work on scaffolding or on structural steel must wear a safety harness
During the late 1990s, questions arose about whether OSHA regulations applied to commu-ters and work-at-home employees In a re-sponse to an inquiry about these questions in November 1999, OSHA issued a letter interpre-tation stating that employers who allow employees to work at home were indeed responsible for any injuries that occurred in the employee’s home This interpretation would mean that employers would have to inspect each employee’s home and, if necessary, make necessary corrections to the home design, including cooling, heating, and ventilation systems Although OSHA claimed that the letter did not represent official policy, several com-pany executives and members of Congress heavily criticized the letter as creating an
SOURCE: U.S Department of Labor, Bureau of Labor Statistics.
Sources, Events of Exposure, and Nature of Resultant Occupational
Illnesses or Injuries, in 2007 a
SOURCE OF INJURY OR ILLNESS
Chemicals or chemical products
1.5%
Furniture or fixtures
4.0%
Machinery 6.0%
Health care patient
4.4%
Tools, instruments,
and equipment
6.8%
Structures and surfaces 22.8%
Worker motion
or position 14.7%
Containers 11.8%
Parts or materials 10.0%
Vehicles 8.4%
EVENT OF EXPOSURE
All other events 10.8%
Overexertion 35.0%
Contact with object 27.4%
Falls, slips,
or trips 24.3%
Exposure to harmful substance
or environment 4.6%
Repetitive motion
3.2%
Transportation accidents
4.6%
Assaults and violent acts
2.1%
Fires, explosions 0.2%
NATURE OF INJURY OR ILLNESS
Amputations 0.6%
Chemical burns 0.5%
Tendonitis 0.4%
Heat burns 1.5%
Carpal tunnel syndrome 1.0%
Multiple traumatic injuries
4.0% Fractures8.2% Cuts or
punctures 9.2%
Bruises 8.7%
Sprains
or strains 38.7%
Other or not specified 27.0%
a Totals may not equal 100 due to rounding.
Other or not specified 9.6%
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE, A
PART OF CENGAGE
LEARNING.
334 OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970
Trang 8unnecessary burden on businesses As a result,
OSHA withdrew the letter in January 2000
According to statements by OSHA
spokes-persons, the regulations do not apply to most
white-collar commuters who work from home
However, regulations do apply to employees
who conduct hazardous manufacturing from
their homes
OSHA’s letter regarding the regulation of
home offices did not end with the agency’s
withdrawal of its response In 2001 President
named the“New Freedom Initiatives,” designed
to enhance the opportunities for disabled
persons under the Americans with Disabilities
Act Among the proposals was a call to prevent
OSHA from regulating home offices, including
a specific reference to the 1999 OSHA letter
OSHA works to improve health and safety
through education and training programs
Among its numerous initiatives, OSHA has
sought to reduce ergonomic hazards in the
workplace that cause pain and discomfort for
millions of workers in the U.S For example, in
2003 OSHA announced that it would work with
injuries among employees of the service
Employers have the right to dispute any
alleged job-safety or health violation found
during an OSHA inspection, the penalties OSHA
has proposed, or the time given by OSHA to
correct any hazardous situation Employees and
union representatives may file a case challenging
the propriety of the time that OSHA has allowed
for correction of any violation
These cases are heard by OSHRC, an
independent, QUASI-JUDICIAL agency A case
arises when a citation is issued against the
employer as a result of an OSHA inspection and
the employer contests the citation within 15
working days
All cases that require a hearing are assigned to
an administrative law judge (ALJ), who decides
the case The government has the BURDEN OF
the ALJs become final orders of the commission
However, each decision is subject to discretionary
review by the three members of the commission
upon the direction of any one of the three, if done
within 30 days of the filing of the decision A
party who is dissatisfied with an ALJ decision
does not have a right of appeal to the commission
but must convince at least one commissioner to
exercise discretion and to agree to have the commission hear the appeal When discretionary review is taken, the commission issues its own decision Once a case is decided, any person who has been adversely affected may file an appeal with a U.S court of appeals
Although every state is covered by the OSH Act, OSHA enforcement mechanisms can be transferred from the federal government to the state government if the state has a plan that is approved by the secretary of labor As of January
2007, 22 states operate state OSHA programs affecting private employers, while three states and a territory (Connecticut, New Jersey, New York, and the Virgin Islands) operate state OSHA programs for state and local government employees only Typically, states have six months after a new federal standard is published to adopt
a comparable standard in their jurisdiction
Section 18 of the OSH Act contains an elaborate procedure that allows a state to administer its own occupational safety and health enforcement programs The basic re-quirement for a state plan is that it be at least as effective as the federal program Generally, the federal government will closely monitor a proposed state plan during the early years of the plan’s implementation Ultimately, virtually all authority under the OSH Act will be ceded to
a state and its enforcement agency if its plan meets the criteria developed by OSHA
Under the constitutional doctrine of federal supremacy, states may not enact laws that conflict with federal law States that do not have OSHA-approved state plans are, therefore, pre-empted by the federal OSH Act from enforcing state job safety and health issues covered by the act, while OSHA is pre-empted from enforcing the OSH Act in states with OSHA-approved plans Thus, pre-emption of state standards may occur if a state plan is awaiting approval, if a state’s plan was rejected,
or if the state did not submit a plan
FURTHER READINGS U.S Government Manual Website Available online at www.
gpoaccess.gov (accessed January 3, 2010).
OSHA Website Available online at www.osha.gov (accessed January 3, 2010).
Sunstein, Cass R 2008 “Is OSHA Unconstitutional?”
Virginia Law Review 94 (October).
CROSS REFERENCES Administrative Law and Procedure; Employment Law;
Labor Law; Workers’ Compensation.
OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970 335
Trang 9vO‘CONNOR, SANDRA DAY
Sandra Day O’Connor was appointed to the U.S Supreme Court in 1981, becoming the first female justice on the high court O’Connor was known as a moderate conservative who prefered narrow, limited holdings
Sandra Day was born on March 26, 1930, in
El Paso, Texas She grew up in a remote part of southeastern Arizona, where her parents owned
a 160,000-acre ranch She spent her winters in
El Paso, where she lived with her grandmother while attending school In 1950 she graduated from Stanford University with a bachelor’s degree in economics She then attended Stan-ford Law School, where she graduated third in her class in 1952 WILLIAM H REHNQUIST, who later would become her colleague on the U.S Supreme Court, ranked first in the same law school class
After law school, Day married John O ’Con-nor, an attorney She had hoped to join a law firm in Los Angeles or San Francisco, but none was willing to hire a woman attorney, although one did offer her a position as legal secretary Instead, O’Connor spent a year as a deputy county attorney in San Mateo, California In
1953, she accompanied her husband, a member
of the U.S Army’s JUDGE ADVOCATE General’s Corps, to West Germany During the three years the couple spent in Germany, O’Connor worked as a civilian attorney for the Quarter-master Corps
On their return from Germany in 1957,
O’Connor and her husband settled in Phoenix, Arizona, where she entered private practice She soon became active in state and local government, serving as a member of the Maricopa County Board of Adjustments and
Sandra Day
O’Connor.
BRENDAN SMIALOWSKI/
GETTY IMAGES
Sandra Day O’Connor 1930–
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❖
1939–45 World War II
1950–53 Korean War
1961–73 Vietnam War
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◆
◆ ◆
1930 Born,
El Paso, Texas
1950 Graduated from Stanford University
1952 Graduated third in her class from Stanford Law School
1953–57 Worked as civilian attorney for the Quartermaster Corps
while her husband served in the Army’s JAG Corps in Germany
1960–63 Served
on the Maricopa County Board of Adjustments and Appeals
1965–69 Served as assistant attorney general of Arizona
1969–74 Served
in the Arizona Senate
1974–79 Served on Maricopa County Superior Court
◆
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1979 Appointed to the Arizona Court of Appeals
1981 Appointed to U.S Supreme Court, became first female justice
1989 Wrote majority
opinion in City of
Richmond v J.A.
Croson Co., which
struck down set-aside program for minority contractors
1992 Joined majority in upholding Roe decision in Planned Parenthood of Southeastern Pa v Casey
1995 Wrote majority opinion in Adarand Constructors v Pena, which required the strict scrutiny test in federal racial classifications
1998 Wrote majority opinion strictly limiting liability of public schools under Title IX for student
sexual abuse and harassment, Gebser v Lago Vista Independent School District; wrote majority opinion in
National Endowment for the Arts v Finley, which held governments may deny grants to artists whose work is indecent
1999 Wrote landmark majority opinion holding that school boards can be sued for failing to
protect students from peer sexual harassment, Davis v Monroe County Board of Education
2000 Voted with majority
in Bush v Gore
2003 The Majesty
of the Law: Reflections of a Supreme Court Justice published
◆
2005 Retired from the Court
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2009 Awarded Presidential Medal
of Freedom
2000 Presidential election result uncertain due
to disputed Fla vote count; recount halted by
U.S Supreme Court with 5–4 vote in Bush v Gore
336 O‘CONNOR, SANDRA DAY
Trang 10Appeals (1960–1963) and the Governor’s
Com-mittee on Marriage and the Family (1965)
From 1965 to 1969 she served as assistant
attorney general for Arizona
In 1969 O’Connor was appointed to fill a
vacancy in the Arizona Senate She won election
to a full term in 1970 and was reelected in
1972 After her re-election, her colleagues
elected her to be majority leader, making her
the first woman in the country to hold such a
position
During her years in the Arizona Senate,
O’Connor voted in favor of the EQUAL RIGHTS
supported the restoration of the death penalty
and limitations on government spending She
also played an active role in REPUBLICAN PARTY
politics, serving as state co-chair of the
committee supporting the re-election of
O’Connor’s career shifted in 1974 with her
election to the Maricopa County Superior
Court She became a respected trial judge and
was appointed by Democratic Governor Bruce
Babbitt to the Arizona Court of Appeals in
1979 In 1981 President RONALD REAGAN
appointed her to the U.S Supreme Court to
replace justicePOTTER STEWART
O’Connor’s decisions on the Court revealed
her to be a pragmatic conservative She wrote
many concurring opinions that attempted to
limit the majority’s holding, suggesting ways
that the Court could have decided an issue on
narrower grounds She joined her conservative
brethren in limiting the rights of defendants in
intervention into areas that are reserved to the
states She was an influential voice in reviewing
challenges to AFFIRMATIVE ACTION programs In
her majority opinion in City of Richmond v J.A
Croson Co., 488 U.S 469, 109 S Ct 706, 102 L
Ed 2d 854 (1989), O’Connor struck down a
set-aside program for minority contractors She
concluded that these types of affirmative action
programs can only be justified to remedy prior
government DISCRIMINATION instead of past
societal discrimination
In Adarand Constructors v Pena, 515 U.S
200, 115 S Ct 2097, 132 L Ed 2d 158 (1995),
O’Connor’s opinion extended the holding of
Croson by requiring that racial classifications by
federal, state, and local governmental units
must be subjected to theSTRICT SCRUTINYof the
courts Although the decision clarified the standard by which affirmative action programs should be reviewed, lower federal and state courts have since struggled with this standard in their review of various types of programs
While on the Court, O’Connor’s position
opinions written by some of her conservative colleagues arguing for the overruling ofROE V
WADE, 410 U.S 113, 93 S Ct 705, 35 L Ed 2d
147, the 1973 decision that defined the right to choose abortion as a fundamental constitu-tional right In Planned Parenthood of South-eastern Pennsylvania v Casey, 505 U.S 833, 112
S Ct 2791, 120 L Ed 2d 674 (1992),
O’Connor joined Justices ANTHONY M.KENNEDY
defended the reasoning of Roe and the line of cases that followed it She also supported the rights of states to regulate abortion as long as the regulations were not too burdensome
O’Connor has been the subject of several books about her life on and off the bench In
2002 she published memoirs of her child-hood, Lazy B: Growing Up on a Cattle Ranch
in the American Southwest, which she co-wrote with her brother, H Alan Day Around the same time, her health began to suffer, and because she had been the swing vote on so many controversial issues during her tenure on the Court, several observers speculated about the direction it would take once she stepped down
O’Connor announced her retirement in June 2005, though she certainly stayed busy
Later that year, her children’s book, Chico, was published In 2006 O’Connor heard cases for one day on the 2nd U.S Circuit Court of Appeals in New York She published another children’s book in June of 2009: Finding Susie
Doing press for the book, she appeared on David Letterman, and charmed him with her wit and personality On July 30, 2009,
O’Connor was named by President BARACK
Freedom, the highest civilian honor in the United States
FURTHER READINGS O’Connor, Sandra Day, and H Alan Day 2002 Lazy B.
New York: Random House.
O’Connor, Sandra Day, with Craig Joyce 2003 The Majesty
of the Law: Reflections of a Supreme Court Justice.
New York: Random House
T HE PURPOSE OF STRICT SCRUTINY IS
TO ‘ SMOKE OUT ’
ILLEGITIMATE USES
OF RACE BY ASSURING THAT THE LEGISLATIVE BODY IS PURSUING A GOAL IMPORTANT ENOUGH
TO WARRANT USE OF
A HIGHLY SUSPECT TOOL
—S ANDRA D AY
O’C ONNOR