Washington, DC — One of the most conservative appellate courts in the country has unanimously overruled the Bush administration in deciding to expand worker rights in whistleblower cases, according to a ruling in a case brought by Public Employees for Environmental Responsibility (PEER). As a result, workers who report dangers from asbestos are protected under the Clean Air Act from retaliation on the job, without having to show that asbestos fibers were escaping outdoors.
The case involves a National Park Service safety officer named William Knox who, in 2000, reported an asbestos problem at the agency’s Job Corps Center in Harper’s Ferry, West Virginia. In response, the Park Service first tried to fire Knox and, when that proved unsuccessful, threatened to cut his pay, transfer him and reduce his duties. Knox filed a whistleblower complaint under the Clean Air Act. After a hearing, a federal administrative judge ordered him reinstated and awarded both compensatory damages and punitive damages in the amount of $200,000, one of the highest such awards against a federal agency.
The office of U.S. Labor Secretary Elaine Chao, conceding that Knox was raising valid public health and occupational safety concerns, blocked the award to Knox on the grounds that the Clean Air Act covers asbestos only when it is released into the open or “ambient air.” PEER, representing Knox, appealed that decision. This week, in a unanimous decision, the Fourth Circuit Court of Appeals, based in Richmond, found that the Labor Department’s interpretation of whistleblower protection under the Clean Air Act was far too narrow, noting that “[t]here are several ways to violate the CAA and its implementing regulations without releases into the ambient air.” Moreover, the court found that, even if the Labor Department had a rational basis for its distinction, Knox did enough by reporting dangers to visitors, as well as workers.
“This is a clear, if narrow, victory for workers’ rights and public health,” stated PEER General Counsel Richard Condit, who successfully argued the case before the Fourth Circuit. “The Labor Department’s imagined line between indoor air and ambient air makes no sense, because indoor air goes outside whenever a door or window is opened.”
Knox’s case now moves back to the Labor Secretary for a final disposition. The underlying problem that Knox exposed, however, has never been officially addressed. Nor is it known whether workers, students and members of the public who may have been exposed suffered health effects.
“Bill Knox’s story illustrates that a federal employee who blows the whistle must be prepared to suffer the torture of the damned before something resembling justice might occur,” Condit added, noting that hyper-technical distinctions are increasingly used to nullify whistleblower claims. “These whistleblower laws are supposed to be interpreted liberally; a worker should not have to be a Philadelphia lawyer in order to be shielded from reprisal when he or she reports health and safety hazards.”
Ironically, this summer, all Park Service employees in its national headquarters underwent whistleblower sensitivity training. That training, however, did not include the whistleblower protection provisions in the Clean Air Act or in other environmental statutes. Compounding that irony, the headquarters building housing the Park Service and other Interior Department agency leadership is now grappling with its own indoor air problems due to a massive reconstruction project.