Amicus Brief — Wengler v. Druggists Mutual Insurance

Supreme Court, U. a

iE aay >

No. 79-381

In the Supreme Court of the United States

OCTOBER TERM, 1979

PAUL J. WENGLER, APPELLANT

OF

DRUGGISTS MUTUAL INSURANCE CO., ET AL.

ON APPEAL FROM THE SUPREME COURT OF MISSOURI

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE

WADE H. McCRreEE, JR.

Solicitor General

DrEw S. Days, III

Assistant Attorney General

STUART A. SMITH

Assistant to the Solicitor General

BRIAN K. LANDSBERG

MARK L. Gross

Attorneys

Department of Justice

Washington, D.C. 20530

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Interest of the United States ~.................2........

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Summary of argument —......................

Argument:

I. The Missouri workmen’s compensation

statute impermissibly discriminates on

the basis of gender and thereby violates

the Equal Protection Clause of the

Fourteenth Amendment ........................--

A. The statutory presumption that

Wives are dependent upon their hus-

band’s earnings unconstitutionally

discriminates against both widowers

and working women .....................-.-

B. The statutory presumption that a

wife is dependent upon her hus-

band’s earnings cannot be upheld as

an attempt to remedy economic dis-

crimination against women ..............

C. The statute cannot be upheld on the

ground of a presumption that wid-

ows’ dependency requires that they

receive death benefits without the

delay of lengthy proceedings ............

II. This Court should remand the case to

the Missouri Supreme Court to select

the method of curing the constitutional

I ae ena ere

15

22

25

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I

CITATIONS

Cases: Page

Arp v. Workers’ Compensation Appeals

Board, 19 Cal. 3d 395, 563 P.2d 849,

Ae C. , BO ooirees 8, 26, 27, la

Califano v. Goldfarb, 480 U.S. 199 -......... passim

Califano v. Webster, 430 U.S. 318 -........... 12,15

Califano v. Westcott, No. 78-437 (June 25,

TEIPUTE cisisibnibcoapsnsaniindunleinesesncieiamupdmmanaadas 20, 26

Coffin v. Secretary of HEW, 400 F. Supp.

953, appeal dismissed, 480 U.S. 924 ...... 21

Craig v. Boren, 429 U.S. 190 .................... 12, 27

Frontiero v. Richardson, 411 U.S. 677 ......passim

Jablon v. Secretary of HEW, 399 F. Supp.

138, afd, 400 U.S. S26 ..................... 21, 26

Kahn v. Shevin, 416 U.S. 351 ...000022.... 6, 19

Kalina v. Railroad Retirement Board, 541

F.2d 1204, cert. denied, 431 U.S. 909.... 26

Maltz v. Jackoway-Katz Cap Co., 3386 Mo.

Ry ee OO oiiicnninincctrcicerennes 17,18

Mafthews v. Lucas, 427 U.S. 495 «0.00.2... 23

CP Wi GD TE, Bo censisastrenicncsicsarpiieenens 19, 27

Parham v. Hughes, No. 78-3 (Apr. 24,

STTED sicesiiobaalideaeiticssininconioin esi nableesindilaceaaliaee 22

Passante v. Walden Printing Co., 53

A.D.2d 8, 385 N.Y.S.2d 178 ................. 8, 27

Phillips v. Martin Marietta Corp., 400

Reea v. Reed, 404 US. 71 .................c0..-.. 12, 22

Schlesinger v. Ballard, 419 U.S. 498.......... 7

Skinner v. Oklahoma, 316 U.S. 535 .......... 27

Stanton v. Stanton, 421 U.S. 7 -..2..222..2...... 27

Taylor v. Louisiana, 419 U.S. 522 _........... 22-23

Ill

Cases—Continued Page

Tomarchio v. Township of Greenwich, 75

eee ee Oe ......................... 8, 27, la

Weinberger v. Salfi, 422 U.S. 749 ...........- 16

Welsh v. United States, 398 U.S. 333 -..... 26

Weinberger v. Wiesenfeld, 420 U.S. 686 -passim

Constitution, statutes and regulations:

United States Constitution, Fourteenth

Amendment, Equal Protection Clause....passim

Pub. L. No. 92-576, Section 20(c) (1), 86

Stat. 1265, amending the Longshore-

men’s and Harbor Workers’ Compensa-

ee eee ee . OU ........................-- 3

Pub. L. No. 98-416, Section 6, 88 Stat.

1145, amending the Federal Employees’

Compensation Act, 5 U.S.C. 8110 ~.........

Pub. L. No. 95-216, Section 341, 91 Stat.

Ee

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EL

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Neen nn caesncancceceessoeen 2

Cee sninnsnceeennncone

co crecevnseeerenen

Ne cnccnconsnnccnecs

Ne cece

Mo. Ann. Stat. (Vernon 1979 Cum.

Supp):

a... 4,9

"yy 11

> 17

<a 25

24

25

Co

MONON NM CHW NHN WNW &

IV

Constitution, statutes and

regulations—Continued Page

Mo. Ann. Stat. § 287.490 (Vernon 1965).. 25

ye ek sy Seeeiantiac, Warman enna Ero 2

Be rt EID rtccnsetcentcceratsievonencs 2

Be a a ND ics iceeccicenitincteriemcices 2

Miscellaneous:

United States Department of Commerce,

Census of Population: 1970, Vol. I,

Characteristics of the Population __.... 23

United States Department of Commerce,

Fourteenth Census of the United

RRS Rprtee ee ote d0 eae -oNed a ar 23

United States Department of Commerce,

Sixteenth Census of the United States.. 23

United States Department of Health, Ed-

ucation, and Welfare, Social Security

and the Changing Roles of Women

PN” PD sictcasssnesasto me esendananesramainens 24

Iu the Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-381

PAUL J. WENGLER, APPELLANT

Vv.

DRUGGISTS MUTUAL INSURANCE CoO., ET AL.

ON APPEAL FROM THE SUPREME COURT OF MISSOURI

BRIEF FOR THE UNITED STATES AS

AMICUS CURIAE

QUESTION PRESENTED

Whether Missouri’s workmen’s compensation s_at-

ute, which provides death benefits to a woman when

her husband dies in a work-related accident, pursuant

to a presumption of dependency, but conditions the

payment of such benefits to a man on proof of de-

pendency upon his wife’s earnings, impermissibly

discriminates on the basis of gender and therefore

violates the Hqual Protection Clause of the Fourteenth

Amendment.

(1)

2

INTEREST OF THE UNITED STATES

Congress has authorized the Attorney General to

intervene on behalf of the United States in any action

of general public importance involving allegations of

denials of equal protection based on sex, as well as

race, color or national origin. 42 U.S.C. 2000h-2.

The United States also enforces civil rights statutes

which prohibit discrimination based on sex. See 15

U.S.C. 169le(g) (credit transactions); 20 U.S.C.

1682 (federally assisted educational programs); 20

U.S.C. 1706, 42 U.S.C. 2000c-6 (school admission) ;

42 U.S.C. 2000e-6 (employment); 42 U.S.C. 3613

(housing). The protection afforded employees by

workmen’s compensation is a benefit of employment.

As a result, awards of workmen’s compensation based

upon sex may well constitute a violation of Title VII

with respect to which the United States has enforce-

ment responsibilities. See 42 U.S.C. 2000e-2(a) (2),

and 29 C.F.R. 1604.9(a), (b), and (d).

This case presents an equal protection challenge

to a state workmen’s compensation statute that pro-

vides automatic death benefits to a surviving wife

pursuant to a presumption of dependency but condi-

tions the payment of benefits to a surviving husband

upon a showing of dependency upon his wife’s earn-

ings or incapacity. In a divided decision, the

Supreme Court of Missouri upheld the statute on the

ground that it was intended ‘“‘to satisfy a perceived

need widows generally had, which need was not

common to men whose wives might be killed while

working” (J.S. App. A-10). In the court’s view, the

3

economic hardship resulting from a working spouse’s

death was more immediate and pronounced on women

than on men and the appellant had not presented any

statistical evidence to the contrary.

In recent years, this Court has struck down similar

gender-based classifications in federal statutes. See,

e.g., Frontiero v. Richardson, 411 U.S. 677 (1978);

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975);

Califano v. Goldfarb, 480 U.S. 199 (1977). These

decisions prompted Congress in December 1977 to

direct the Secretary of Health, Education, and Wel-

fare and the Task Force on Sex Discrimination of the

Department of Justice to identify those provisions

in the Social Security Act which award benefits on

the basis of presumptions of dependency and to pro-

pose the means for their elimination. See Pub. L.

No. 95-216, Section 341, 91 Stat. 1548. In February

1979, the report was transmitted to Congress. It

suggests the method by which the few remaining

gender-based classifications in the Social Security

Act may be removed. Moreover, Congress has re-

cently equalized the benefits paid under federal work-

ers’ compensation-type statutes to surviving husbands

and wives of federal employees. See, e.g., Pub. L. No.

93-416, Section 6, 88 Stat. 1145, amendments to Fed-

eral Empioyees’ Compensation Act, 5 U.S.C. 8110;

Pub. L. No. 92-576, Section.20(c) (1), 86 Stat. 1265,

amendments to Longshoremen’s and Harbor Workers

Compensation Act, 33 U.S.C. 902. Given the pro-

hibition of the civil rights statutes against gender-

based discrimination in employee compensation, the

4

United States has a direct interest in insuring that

state statutes rest upon comparable standards of

equality between men and women.

STATEMENT

1. The facts are fully stipulated and may be sum-

marized as follows: On February 11, 1977, appel-

lant’s wife, Ruth Mae Wengler, was killed in a work-

related automobile accident in the parking lot of her

employer, appellee Dicus Prescription Drugs, Ince.

At the time of her death, Ruth Mae Wengler’s wages

were $69 per week. Appellant was not dependent for

his support on his wife’s earnings during her lifetime

and was not physically or mentally incapacitated

from earning income (J.S. App. A-1, A-22 to A-23).

Appellant filed a claim for death benefits under

Missouri’s Workmen’s Compensation Law, Section

287.240 (Mo. Ann. Stat. § 287.240 (Vernon 1979

Cum. Supp.)). The rate of compensation at which

such benefits were payable was $46 per week (J.S.

App. A-23). Under the Missouri Workmen’s Com-

pensation Law, a widower is not entitled to death

benefits unless he (1) is mentally or physically in-

capacitated from wage earning; or (2) proves actual

dependency upon his wife’s earnings. On the other

hand, a widow qualifies for death benefits without

having to prove actual dependency on her husband’s

earnings (J.S. App. A-1 to A-2).

After a hearing on July 21, 1977, before a referee

of the Missouri Labor and Industrial Relations Com-

mittee, the referee denied appellant’s claim on the

ground that he did not meet the statutory require-

f

v

ments of incapacity or dependency. On review, the

Missouri Labor and Industrial Relations Commission

adopted the referee’s decision denying compensation

(J.S. 4-5). Both the referee and the Industrial Com-

mission rejected appellant’s claim that the disparate

treatment of widows and widowers violated the Equal

Protection Clause of the Fourteenth Amendment. In

their view, only a court had the authority to hold a

statute unconstitutional (J.S. App. A-24).

The Circuit Court of Missouri reversed (J.S. App.

A-21 to A-25). It held that the provision of the

Missouri Workmen’s Compensation Law that restricts

the payment of death benefits to only those surviving

husbands who are incapacitated or dependent upon

their wife’s earnings violates the Equal Protection

Clause of the Fourteenth Amendment because the

restriction does not apply to surviving wives (J.S.

App. A-25).

2. In a 6-1 decision, the Supreme Court of Mis-

souri reversed and upheld the constitutionality of the

statute. The court acknowledged that to withstand

scrutiny under the Equal Protection Clause, “classifi-

cation by gender must serve important governmental

objectives and must be substantially related to

achievement of those objectives” (J.S. App. A-4). It

concluded that the Missouri statute met this standard

because the purpose of the conclusive presumption of

dependency in favor of widows “was to satisfy a per-

ceived need widows generally had, which need was

not common to men whose wives might be killed while

working” (J.S. App. A-10). As the court saw the

6

matter, “the substantive difference in the economic

standing of working men and women justifies the

advantage that [the Missouri statute] administra-

tively gives to a widow” (J.S. App. A-11).

In the court’s view, it seemed reasonably certain

that the data available to the Missouri legislature at

the time the statute was first enacted in 1925 would

have “supported the concept that a widow was more

in need of prompt payment of death benefits upon her

husband’s death without drawn-out proceedings to

determine the amount of dependency than was a

widower” (J.S. App. A-10). In this respect, the

court analogized the statutory presumption of de-

pendency favoring widows to the $500 real estate

tax exemption for widows upheld in Kahn v. Shevin,

416 U.S. 351 (1974).

The decision below distinguished Weinberger v.

Wiesenfeld, 420 U.S. 636 (1975), and Califano v.

Goldfarb, 430 U.S. 199 (1977), in which this Court

struck down gender-based presumptions of depend-

ency in favor of women under the Social Security

Act. The court did not regard those cases as control-

ling because the Social Security program is a form

of social insurance funded by mandatory employee

contributions while Missouri workmen’s compensa-

tion law is a substitute for common law tort remedies

and is funded solely by employers (J.S. App. A-9).

The dissenting judge expressed the view that Wein-

berger v. Wiesenfeld, supra, was controlling and

compelied the conclusion that the statute violated the

Equal Protection Clause. He concluded that the

7

gender-based distinction in the Missouri statute was

premised on the “ ‘archaic and overbroad’ generaliza-

tion, * * * ‘not * * * tolerated under the Constitution’

* * * namely, that male workers’ earnings are vital

to the support of their families, while the earnings

of female wage earners do not significantly contribute

to their families’ support” (420 U.S. at 643, quoting

from Schlesinger v. Ballard, 419 U.S. 498, 507, 508

(1975) ).

SUMMARY OF ARGUMENT

1. Under Missouri’s workmen’s compensation stat-

ute, the wife of an employed husband is conclusively

presumed to be wholly dependent for support on the

husband, and receives a full death benefit when the

husband is killed in a work-related accident. How-

ever, the husband of an employed wife is accorded no

such presumption, and receives benefits for the death

of the wife only when, and to the extent that, he can

prove he was actually dependent on her income. The

Supreme Court of Missouri upheld this disparate de-

pendency test as a means of redressing the legacy of

economic discrimination against women and as an

administratively convenient method of insuring that

deserving women receive benefits. But the gender- —

based discrimination of the statute does not advance

either goal and therefore violates the Equal Protection

Clause.

This Court’s decisions in Weinberger v. Wiesenfeld,

420 U.S. 636 (1975), and Califano v. Goldfarb, 430

U.S. 199 (1977), control this case and require re-

versal of the decision below. There, the Court pointed

8

out that statutory presumptions that wives are de-

pendent upon their husbands are not actually de-

signed to remedy the effects of sex discrimination but

are based on the outmoded assumption that wives

remain at home and do not participate in employment

of any significance. Although remedying the effects

of discrimination against women may be a valid basis

for properly drawn gender-based legislation, a con-

clusive presumption that wives are totally dependent

on their husbands for support does not withstand

constitutional challenge.

This Court’s decisions also reject the Missouri

Supreme Court’s justification of the presumption as

an administrative convenience. According differential

treatment to men and women for the sole purpose of

achieving administrative convenience is to make the

arbitrary legislative choice forbidden by the Consti-

tution. 7

Finally, Missouri’s disparate treatment of the sexes

is an exception to the current trend in this country.

Forty-three of the 50 states treat men and women

equally for purposes of determining dependency un-

der workmen’s compensation (see Appendix, infra).

In three of these states, recent decisions have held

unconstitutional statutes with a presumption of de-

pendency identical to that at issue in this case. See

Arp v. Workers’ Compensation Appeals Board, 19

Cal.3d 395, 563 P.2d 849, 138 Cal. Rptr. 293 (1977) ;

Passante v. Walden Printing Co., 58 A.D.2d 8, 385

N.Y.S.2d 178 (1976); Tomarchio v. Township of

Greenwich, 75 N.J. 62, 8379 A.2d 848 (1977). And,

as we have noted (supra, page 3), the federal work-

9

ers’ compensation statutes have recently been amended

to treat spouses equally.

2. There are two equally constitutional remedies

that would cure the defect of the Missouri statute.

The presumption of dependency could either be ex-

tended to widowers or eliminated for widows. Since

the provision at issue is a state statute, the decision

on whether to extend the presumption to widowers or

eliminate it for widows is one which is more appro-

priately made by the Supreme Court of Missouri.

We therefore suggest that this Court hold the pre-

sumption unconstitutional and remand the case to

the Supreme Court of Missouri to choose the remedy

most closely in accord with the intent of the legisla-

ture.

ARGUMENT

I. THE MISSOURI WORKMEN’S COMPENSATION

STATUTE IMPERMISSIBLY DISCRIMINATES ON

THE BASIS OF GENDER AND THEREBY VIO-

LATES THE EQUAL PROTECTION CLAUSE OF

THE FOURTEENTH AMENDMENT

A. The statutory presumption that wives are depend-

ent upon their husband’s earnings unconstitution-

ally discriminates against both widowers and work-

ing women

1. Appellant’s wife was killed in a work-related

accident. It is stipulated that he was not dependent

upon her earnings for support. Under the Missouri

Workmen’s Compensation Law (Mo. Ann. Stat.

§ 287.240 (Vernon 1979 Cum. Supp.)), appellant

was ineligible to receive any death benefits from his

wife’s employer following her work-related death.

10

But if the sexes of the dramatis personae had been

reversed and appellant were a woman whose hus-

band died in a work-related accident, she would have

received an award of $46 per week without regard

to whether she was dependent for support upon her

husband’s earnings. This benefit would be payable

for the rest of her life and would terminate only upon

her remarriage.

This disparate treatment is a cofsequence of the

operation of Missouri’s conclusive presumption that

Wives are dependent upon their husbands’ earnings

but that husbands are not necessarily dependent upon

their wives’ earnings. As a result, similarly situated

male and female spouses do not receive the same

benefits. A widower, like appellant, who is not de-

pendent on his working wife, receives nothing when

she dies in a work-related accident, while a widow

who is not dependent, or only partially dependent,

on her working husband, receives a full death benefit

when the husband dies in a work-related accident.

The Missouri statute operates to the disadvantage

of both men and women. It discriminates against men

to the extent that it denies them benefits upon the

death of their working wives. But it also discriminates

against women by diminishing the protection afforded

to their surviving spouses. A man covered by the

workmen’s compensation statute knows that if he is

killed in a work-related accident, his widow will re-

ceive the maximum monetary benefit possible without

regard to her actual financial dependence upon his

earnings. He is thereby assured that in case of his

11

death, his wife’s overall income will be affected as

little as the Act will permit." The working woman,

however, does not receive an equal benefit from her

employment. Under the Missouri statute, her hus-

band will receive a monetary award to replace her

lost income only to the extent he can prove actual

dependence on all, or part, of her earnings. The

benefits provided to a working woman are therefore

significantly less than those provided a similarly-

situated working man.

We submit that the decisions of this Court establish

that the disparate treatment of widows and widowers

under the Missouri statute violates the Equal Pro-

tection Clause. In a series of cases involving com-

parable federal statutes, the Court has recognized

that similar conclusive statutory presumptions that

Wives are dependent on their husbands discriminate

against working women. In Frontiero v. Richardson,

411 U.S. 677 (1973), the Court struck down statutes

providing that spouses of male members of the uni-

formed services were dependents for purposes of

obtaining increased fringe benefits but that spouses

of female members were not dependents unless they

were in fact dependent for more than one-half of

their support. Likewise, in Weinberger v. Wiesen-

feld, 420 U.S. 636 (1975), the Court held invalid a

gender-based distinction in the Social Security Act

1The Act awards the dependent spouse 66 2/3% of the

deceased’s average wage during the year preceding the ac-

cident. Mo. Ann. Stat. § 287.240(2) (Vernon 1979 Cum.

Supp.).

12

that granted survivors’ benefits to widows but not to

widowers. As the Court concluded, “[s]ince the

Constitution forbids the gender-based differentiation

* * * made in the statutes before us in Frontiero,

the Constitution also forbids the gender-based dif-

ferentiation that results in the efforts of female work-

ers required to pay social security taxes producing

less protection for their families than is produced by

the efforts of men” (420 U.S. at 645).

Frontiero and Wiesenfeld control this case and re-

quire reversal of the judgment below. It is beyond

dispute that the Missouri statute provides disparate

treatment for workmen’s compensation death awards

depending upon whether the claimant is a widow or

widower. Widows are clearly favored insofar as they

are exempt from the requirement of providing de-

pendency upon their husband’s earnings. But “[t]o

withstand constitutional challenge, previous cases

establish that classifications by gender must serve

important governmental objectives and must be sub-

stantially related to achievement of those objectives.”

Craig v. Boren, 429 U.S. 190, 197 (1976); Reed v.

Reed, 404 U.S. 71 (1971); Califano v. Webster, 430

U.S. 313 (1977).

The gender-based distinctions of the Missouri stat-

ute do not serve important governmental objectives.

Just as Stephen Wiesenfeld was precluded from re-

ceiving Social Security survivorship benefits simply

because he was a widower rather than a widow, here

too, appellant was ineligible for workmen’s compen-

sation because he was a widower who was not de-

13

pendent on his wife’s earnings. If appellant had been

a widow, the Missouri statute would have presumed

dependency upon her husband’s earnings. As Mr.

Justice Brennan wrote for the plurality in Califano

v. Goldfarb, 430 U.S. 199, 206-207 (1977), “Wiesen-

feld thus inescapably compels the conclusion * * *

that the gender-based differentiation * * * is for-

bidden by the Constitution, at least when supported

by no more substantial justification than ‘archaic and

overbroad’ generalizations, Schlesinger v. Ballard,

[419 U.S. 498, 508 (1975) ], or ‘old notions,’ Stanton

v. Stanton, 421 U.S. 7, 14 (1975), such as ‘assump-

tions as to dependency,’ Weinberger v. Wiesenfeld,

[420 U.S. 636, 645 (1975) ], that are more consistent

with ‘the role-typing society has long imposed,’

Stanton v. Stanton, supra, at 15, than with contem-

porary reality. Thus, [the Missouri statute] ‘[bly

providing dissimilar treatment for men and women

who are * * * similarly situated * * * violates

the [Equal Protection Clause].’ Reed v. Reed, 404

U.S. 71, 77 * * *. Weinberger v. Wiesenfeld, supra,

at 653.”

2. In upholding the constitutionality of the gender-

based classifications of the Missouri workmen’s com-

‘ pensation statute, the decision below found that “[t]he

governmental objective was to require employers to

alleviate the economic hardship resulting from a

working spouse’s death. This hardship was seen by

the legislatures as more immediate and pronounced

on women than on men” (J.S. App. A-10 to A-11). In

the court’s view, the statutory presumption of depend-

14

ency “appears to favor a woman (widow) rather

than discriminate against her, in that it affords the

widow death benefits on her husband’s compensable

death without further proof of dependency” (J.S.

App. A-10; emphasis in original). As the court ob-

served (ibid.) :

The data available to the general assembly at

[the] time [the statute was passed in 1925] no

doubt supported the concept that a widow was

more in need of prompt payment of death bene-

fits upon her husband’s death without drawn-out

proceedings to determine the amount of depend-

ency than was a widower. It seems reasonably

certain that during the 1920’s and 1930’s it was

more difficult than now for a woman to obtain

employment with substantial pay and very diffi-

cult for her when, upon her husband’s death, she

was suddenly thrust into the job market. It

seems rather obvious therefore that the purpose

of the conclusive presumption of dependency was

to satisfy a perceived need widows generally had,

which need was not common to men whose wives

might be killed while working.

The Missouri Supreme Court’s decision therefore

rests upon two governmental interests that it re-

garded as justifying the conclusive presumption of

dependence for widows. First, women had suffered

the effects of economic discrimination, were therefore

less able than men to get employment, and were there-

fore more in need of benefits. Second, women were

more in need of prompt payment than men, and the

presumption of dependence accelerated the process

of payment.

15

But, as we shall now show, neither of these interests

justifies the gender-based classifications of the stat-

ute. Nothing suggests that the disparate treatment

of widows and widowers under the Missouri work-

men’s compensation law is designed to remedy the

effects of economic discrimination against women.

Nor is there any evidence that the conclusive pre-

sumption of dependency materially hastens the proc-

ess of payment of an award to a widow. In the

absence of convincing governmental interests, the

statute therefore is invalid under the Equal Protec-

tion Clause.

B. The statutory presumption that a wife is dependent

upon her husband’s earnings cannot be upheld as

an attempt to remedy economic discrimination

against women

1. The primary justification offered by the Missouri

Supreme Court for the statutory presumption of de-

pendency in the workmen’s compensation statute is

that it was intended to overcome the effects of past

discrimination against women. To be sure, this Court

has upheld gender-based classifications intended to

“redress[] our society’s longstanding disparate treat-

ment of women.” Califano v. Goldfarb, supra, 430

U.S. at 209 n.8; Califano v. Webster, supra, 430 U.S.

at 317. But such legislation can be sustained only if

it “operate[s] directly to compensate women for past

economic discrimination.” Califano v. Webster, supra,

430 U.S. at 318. The “mere recitation of a benign,

compensatory purpose is not an automatic shield

which ysrotects against any inquiry into the actual

16

purposes underlying a statutory scheme.” Weinberger

v. Wiesenfeld, supra, 420 U.S. at 648. Rather, where

gender-based classifications are presented, this Court

has undertaken a more searching review of the under-

lying purposes of the distinction. See Califano v.

Goldfarb, supra, 430 U.S. at 211 n.9 (Brennan, J.,

plurality opinion) ; Weinberger v. Salfi, 422 U.S. 749,

785 (1975).

Weinberger v. Wiesenfeld, supra, and Califano v.

Goldfarb, supra, involved such an examination of

gender-based classifications under the Social Security

Act. In both instances, the Court rejected the argu-

ment that the distinction favoring widows over

widowers was designed to redress the economic dif-

ficulties confronting women. Thus, in Wiesenfeld,

the Court found that Congress’ purpose in providing

benefits to young widows with children was not to

redress economic discrimination against women who

were unable to provide for themselves. “Rather, [the

statute], linked as it is directly to responsibility for

minor children, was intended to permit women to

elect not to work and to devote themselves to the care

of children. Since this purpose in no way is premised

upon any special disadvantages of women, it cannot

serve to justify a gender-based distinction which

diminishes the protection afforded to women who do

work” (420 U.S. at 648).

Similarly, in Califano v. Goldfarb, supra, the Court

struck down a comparable statute that awarded

death benefits to an aged widow by conclusively

presuming her dependency on her husband for sup-

17

port but awarded benefits to a widower only if

he could prove dependency. In so holding the Court

rejected the argument that the statute was designed

to redress the legacy of economic discrimination

against women. “On the face of the statute, de-

pendency, not need, is the criterion for inclusion”

(430 U.S. at 213) (plurality opinion). By con-

clusively presuming that all wives are dependent

on their husbands, the statute favored those women

who were financially independent. ‘The widows who

benefit from the disparate treatment are those who

were sufficiently successful in the job market to be-

come nondependent on their husbands. Such a widow

is the least likely to need special benefits” (430 U.S.

at 221) (Stevens, J., concurring in the judgment).

Here, as in Wiesenfeld and Goldfarb, the Missouri

statute is based upon dependency and not need. The

term “dependent” is defined as a “relative by blood

or marriage of a deceased employee, who is actually

dependent for support, in whole or in part, upon his

wages at the time of the injury.” Mo. Ann. Stat.

§ 287.240(4) (Vernon 1979 Cum. Supp.). The de-

cisions of the Missouri Supreme Court have stated

that the purpose of the Workmen’s Compensation

Law is to insure that actual dependents of deceased

wage earners are compensated for the support lost

at the death of a wage earner. See, ¢.g., Maltz v.

Jackoway-Katz Cap Co., 336 Mo. 1000, 1006, 82

S.W.2d 909, 912 (1934).?

2In Maltz, the court stated that the legislature intended

to “ameliorate * * * the losses sustained by [the workman]

18

There is no provision in the Missouri Code support-

ing the rationale of the decision below that the legis-

lature intended the gender-based distinction to remedy

economic discrimination against women. Women and

men who are totally supported by spouses with equal

incomes receive equal benefits; the women do not re-

ceive more. But a nondependent woman receives the

same benefits as a totally dependent one, while a non-

dependent man, like appellant, gets no benefits at all.

Like the provisions struck down in Wiesenfeld and

Goldfarb, the Missouri statute provides benefits solely

on the basis of dependency. The conclusive presump-

tion of dependency given to widows follows the ‘then

generally accepted presumption that a man is re-

sponsible for the support of his wife * * *.” Califano

v. Goldfarb, supra, 430 U.S. at 215 (plurality opin-

ion). As the Court stated in Weinberger v. Wiesen-

feld, supra, 420 U.S. at 645, “[ While] the notion that

men are more likely than women to be the primary

supporters of their spouses and children is not en-

tirely without empirical support[,] * * * such a gender-

based generalization cannot suffice to justify the

denigration of the efforts of women who do work and

whose earnings contribute significantly to their fami-

lies’ support.”

Finally, the fact that the statute benefits nonde-

pendent women—those who are already successful

enough in the job market to be self-supporting—to

the same extent as totally dependent women shows

and his dependents from accidental injuries received by him

in the proper course of his work” (336 Mo. at 1006, 82 S.W.

2d at 912).

19

beyond question that the Missouri legislature was

not attempting to remedy the effects of economic dis-

crimination against women. “To accept the * * *

justification [of the Missouri Supreme Court] we

must presume that [the Missouri legislature] de-

liberately gave a special benefit to those females least

likely to have been victims of the historic discrimi-

nation discussed in Kahn [v. Shevin, 416 U.S. 351

(1974)]. Respect for the legislative process. pre-

cludes the assumption that the statutory discrimi-

nation is the product of such irrational lawmaking.”

Califano v. Goldfarb, supra, 430 U.S. at 221 (Stevens,

J., concurring in the judgment). Accord: Orr v. Orr,

440 U.S. 268, 283 (1979).’ .

2. In upholding the gender-based deasiteition of

the Missouri statute, the decision below attempted’ to

8 Kahn v. Shevin, 416 U.S. 351 (1974), upon which the deci-

sion below relied (J.S. App. A-4), is therefore distinguishable.

There, the Court upheld the constitutionality of a Florida

annual $500 real estate tax exemption for all..widows. In

the Court’s view, economic statistics that showed a lower

median income for women than men justified “a state tax

law reasonably designed to further the state policy of cushion-

ing the financial impact of spousal loss upon the sex for which

that loss imposes a disproportionately heavy burden” (416

U.S. at 355). Here, however, the gender-based discrimina-

tion in the Missouri workmen’s compensation statute is not

based upon any presumed general economic need of widows

but upon presumed dependency of wives upon their hus-

band’s earnings. Thus, the Kahn rationale justifying the

exemption upon redress of the legacy of economic discrimi-

nation against women is inapplicable here. See Weinberger

v. Wiesenfeld, supra, 420 U.S. at 648. See also Califano v.

Goldfarb, supra, 480 U.S. at 221-224 (Stevens, J., concurring -

in the judgment).

20

distinguish Wiesenfeld and Goldfarb on the ground

that they involved a form of “social insurance”

(social security) with mandatory employee contribu-

tions, while the workmen’s compensation benefits at

issue here are a substitute for common law rights

(see J.S. App. A-8 to A-9).

But this Court rejected much the same distinction

only last Term in Califano v. Westcott, No. 78-437

(June 25, 1979). At issue in Westcott was a pro-

vision of the Social Security Act (42 U.S.C. 607)

which provided AFDC benefits to families with an

unemployed father but not to families with an un-

employed mother. In striking down the statute, the

Court rejected the argument that Frontiero, Wiesen-

feld, and Goldfarb were inapplicable because the

benefits in those cases “were a form of compensation

earned by a women as a member of the labor force,

or were directly related to such compensation” while

the benefits in Westcott were part of a “noncontribu-

tory welfare program.” As the Court stated (slip op.

7-8):

The distinction between employment-related

benefits and other forms of government largesse

may be relevant to equal protection analysis, for

example, in determining whether the differential

treatment of survivor’s benefits denigrates the

efforts of the deceased spouse. Wiesenfeld, 420

U.S. at 645-647; Goldfarb, 430 U.S. at 206-207

(plurality opinion). This does not mean, how-

ever, that the Constitution is indifferent to a

statute that conditions the availability of non-

contributory welfare benefits on the basis of

21

gender. The Secretary’s argument to the con-

trary in effect invites a return to the discredited

view that welfare benefits are a “privilege” not

subject to the guarantee of equal protection. See

Graham v. Richardson, 403 U.S. 365, 374

(1971).

Westcott therefore demonstrates that whether a

particular gender-based distinction arises out of a

contractual obligation, or as part of a noncontribu-

tory scheme of benefits, the standard of review in

scrutinizing gender classifications is the same. As

the Court observed in Weinberger v. Wiesenfeld,

supra, 420 U.S. at 646, “[w]e do not see how the fact

that social security benefits are ‘noncontractual’ can

sanction differential protection for covered employees

which is solely gender based.” *

4The Missouri Supreme Court also sought to justify the

statute on the ground that widowers are not deprived of

benefits entirely but receive them “upon proof of dependency”

(J.S. App. A-11). But the fact that some men receive bene-

fits does not by itself cure the discriminatory effect that this

statute has upon women by providing them with less protec-

tion from their employment than men. See Califano v. Gold-

farb, supra; Jablon v. Secretary of HEW, 399 F. Supp. 118,

128 (D. Md. 1975) (three-judge court), aff’d, 480 U.S. 924

(1977) ; Coffin v. Secretary of HEW, 400 F. Supp. 953, 957

(D.D.C. 1975) (three-judge court), appeal dismissed, 430

U.S. 924 (1977). Cf. Phillips v. Martin Marietta Corp.,

400 U.S. 542 (1971).

22

C. The statute cannot be upheld on the ground of a

presumption that widows’ dependency requires that

they receive death benefits without the delay of

lengthy proceedings

The Missouri Supreme Court further attempted to

justify the statute on the ground that it permits

widow’s benefits to be awarded “without drawn-out

proceedings to determine the amount of dependency’”’

(J.S. App. A-10). But even on the assumption that

the legislature intended to provide widows with death

benefits without protracted hearings, such disparate

treatment would be prohibited by the Equal Protec-

tion Clause. In Reed v. Reed, 404 U.S. 71 (1971),

the Court unanimously rejected much the same

rationale of administrative convenience in striking

down a gender-based classification for qualification

as an administrator of an estate. The Court held that

even though the state’s interest in achieving admin-

istrative efficiency is not without some legitimacy,

“Tt]o give a mandatory preference to members of

either sex over members of the other, merely to ac-

complish the elimination of hearings on the merits,

is to make the very kind of arbitrary legislative

choice forbidden by the Equal Protection Clause”

(404 U.S. at 76). See also Frontiero v. Richardson,

supra, 411 U.S. at 683; Califano v. Goldfarb, supra,

430 U.S. at 205.

Moreover, economic statistics show that the gender-

based classification is not so “precisely structured”

(Parham v. Hughes, No. 78-3 (Apr. 24, 1979), slip op.

5 n.5) as to justify its use as a substitute for a more

searching inquiry. See also Taylor v. Louisiana, 419

23

U.S. 522, 535 (1975); Frontiero v. Richardson,

supra, 411 U.S. at 689 & n.23, Califano v. Goldfarb,

supra, 4380 U.S. at 205 (plurality opinion). Cf.

Mathews v. Lucas, 427 U.S. 495, 513 (1976). Statis-

tics regarding the employment of married women in

Missouri demonstrate that the presumption of de-

pendency of wives upon their husbands’ earnings re-

sults in significant overpayments which cast substan-

tial doubt on the argument that the presumption is

based on administrative convenience. As of 1970,

39.4% of all married women in Missouri were in the

labor force. United States Department of Commerce,

Census of Population: 1970, Vol. 1, Characteristics

of the Population, Part 27, Table 44.° For the cur-

5In 1920, when the Missouri workmen’s compensation

statute was first proposed, only 7% of married women in

Missouri were employed (U.S. Department of Commerce,

Fourteenth Census of the United States: 1920, State Com-

pendium, Vol. VI, Table 25). Since that time the percentage

has steadily risen (all of these figures are derived from

Census Reports of the Department of Commercef. For 1920,

1930, and 1940, citation is to total number of married women

in labor force; total number of married women in the state

appears in Sixteenth Census of the United States, Vol. IV,

Population, Characteristics by Age, Table 6) :

Year % of Married Women Employed

1930 10.1% (Vol. IV, Population, Occupations by States,

Table 15)

1940 11% (Vol. III, Population, Labor Force, Table

8)

1950 21% (Vol. II, Characteristics of Population,

Part 25, Table 70)

1960 30% (Vol. I, Characteristics of Population,

Part 27, Table 52)

1970 39.4% (see above)

24

rent year, the figure is probably much higher. Ac-

cording to a 1979 report of the Department of

Health, Education, and Welfare, in 1978, 48% of all

married women in the United States were actively in

the labor force. United States Department of Health,

Education, and Welfare, Social Security and the

Changing Roles of Women 21 (Feb. 1979). Accord-

ingly, in a substantial percentage of cases the conclu-

sive presumption of a wife’s total dependence is in-

accurate, as the widow has income of her own. In the

light of these figures, administrative convenience

cannot justify the presumption of dependency. Mis-

souri’s presumption of dependency “has little relation-

ship to present reality.” Weinberger v. Wiesenfeld,

supra, 420 U.S. at 643 n.11. Cf. Califano v. Goldfarb,

supra, 430 U.S. at 239 n.7 (Rehnquist, J., dissenting).

At all events, nothing in the Missouri workmen’s

compensation statute or its legislative history sug-

gests that the legislature intended to insure that bene-

fits would be paid to widows any more rapidly than

benefits are paid to anyone else. There is no exception

for widows under the provisions of the statute which

permit hearings when the employer and dependents

cannot agree on the level of compensation, or other

matters relating to an award. See Mo. Stat. Ann.

§ 287.450 (Vernon 1979 Cum. Supp.). The order of

the Industrial Commission referee can be reviewed by

the Industrial Commission at the request of any party

made within 20 days of the date of the award. There

is no exception for awards payable to widows, and no

time limitation for the commission’s review other

than the direction that it commence “as soon as prac-

25

ticable.” Mo. Stat. Ann. § 287.480 (Vernon 1979

Cum. Supp.). Within 30 days after the award is

entered by the commission, any party can request

judicial review. Although all of such cases are given

priority status, there is no expedited treatment for

awards to widows. Mo. Stat. Ann. § 287.490 (Ver-

non 1965).

Even where the employer and the claimant agree

on an award, the Missouri Code provides that the

agreement is not valid until “approved by an ad-

ministrative law judge or the commission, nor shall

an administrative law judge or the commission ap-

prove any settlement which is not in accordance with

the rights of the parties as given in this chapter.”

Mo. Ann. Stat. § 287.390 (Vernon 1979 Cum. Supp.).

Once again, there is no limit on this review pro-

cedure, and no special expedition for claims of de-

pendent widows. In sum, the Missouri Workmen’s

Compensation Law is not designed to eliminate or

short-circuit the procedures for the resolution of

widows’ death benefit claims, on the basis of a pre-

sumption of widows’ dependency—even if such a

presumption would validly provide a basis for doing

SO.

II. THIS COURT SHOULD REMAND THE CASE TO

THE MISSOURI SUPREME COURT TO SELECT

THE METHOD OF CURING THE CONSTITU-

TIONAL VIOLATION

If, as we submit, the Court holds Missouri’s gender-

based classification to violate the Equal Protection

Clause, there are two equally valid methods available

26

for curing the defect. The presumption of dependence

can be extended to widowers or eliminated for widows.

On several occasions this Court has extended fed-

eral benefits to persons previously unconstitutionally

excluded from coverage, rather than cutting back on

coverage as a means to eliminate a constitutional

violation. See Califano v. Westcott, No. 78-487 (June

25, 1979), slip op. 12-13. Whether the presumption of

dependence should be extended or invalidated requires

the Court to determine which approach is most con-

sistent with the purposes of the legislation (Welsh

v. United States, 398 U.S. 333, 361-367 (1970) (Har-

lan, J., concurring); Kalina v. Railroad Retirement

Board, 541 F.2d 1204 (6th Cir. 1976), cert. denied,

431 U.S. 909 (1977); Arp v. Workers’ Compensation

Appeals Board, supra, 19 Cal.3d at 407-408, 563 P.2d

at 856, 138 Cal. Rptr. at 300), as well as to consider

the practicalities inherent in extension or invalida-

tion. See, e.g., Jablon v. Secretary of HEW, 399 F.

Supp. 118, 131-182 (D. Md. 1975) (three-judge

court), aff’d, 430 U.S. 924 (1977).

In the present case, where a state rather than fed-

eral program is involved, there is little legislative

history to serve as a guide. In several instances,

when state programs involving sex discrimination

claims were at issue, this Court declined to direct a

specific remedial approach but simply declared the

state statute unconstitutional and remanded the case

to allow state authorities to choose an appropriate

method of remedying the constitutional violation.®

6 The three state court decisions declaring conclusive pre-

sumptions identical to Missouri’s unconstitutional have taken

27

Orr v. Orr, 440 U.S. 268 (1979); Craig v. Boren, 429

U.S. 190, 210 n.24 (1976); Stanton v. Stanton, 421

U.S. 7, 138-18 (1975). See also Skinner v. Oklahoma,

316 U.S. 535, 542-543 (1942). Because either ex-

tension or invalidation of the presumption would be

constitutionally valid, we submit that the case should

be remanded to the Missouri Supreme Court to select

the remedy more closely in accord with the intent of

the state legislature.’

differing approaches with respect to remedy. In Arp V.

Workers’ Compensation Appeals Board, supra, the California

Supreme Court invalidated the presumption, concluding that

expanding the coverage of the Act by extending the pre-

sumption is more properly a legislative than judicial duty.

19 Cal. 3d at 409, 563 P.2d at 857, 188 Cal. Rptr. at 301. The

New Jersey Supreme Court approved an order extending the

presumption to widowers, holding that that approach was

“least destructive of the dominant legislative plan.” Tomar-

chio Vv. Township of Greenwich, supra, 75 N.J. at 76, 379

A.2d at 854. The Appellate Division of the New York Su-

preme Court extended the presumption to widowers “[u]ntil

further legislative action is taken.” Passante v. Walden Print-

ing Co., supra, 53 A.D.2d at 18, 385 N.Y.S.2d at 181.

7There are 43 states that treat male and female spouses

equally under workers’ compensation statutes (See Appendix,

infra). Of that number, only five (Arkansas, California,

Maryland, Virginia, and West Virginia) require a surviving

spouse living with the deceased at the time of death to prove

actual dependency to receive benefits. Several states require

a spouse living apart to show actual dependency for support

at the time of death.

28 la

CONCLUSION APPENDIX

The judgment of the Supreme Court of Missouri

should be vacated and the case remanded for further

proceedings consistent with the Court’s opinion.

I. States in which workmen’s compensation law

makes no distinction in the eligibility of widows and

widowers for death benefits:

Respectfully submitted. Ala. Code § 25-5-61

Alaska Stat. § 23.30.215

Ariz. Rev. Stat. Ann. § 23-1046

Wane H. MoCREE, Jp. Ark. Stat. Ann. § 81-1315

shee taiadiaciteetins Cal. Lab. Code §§ 3501(a), 3502 (West), de-

Drew S. Days, III clared unconstitutional in Arp v. Workers’

Assistant Attorney General Compensation Appeals Board, 19 Cal.3d 395,

STuART A. SMITH 563 P.2d 849, 138 Cal. Rptr. 293 (1977)

Assistant to the Solicitor General Colo. Rev. Stat. § 8-50-101

BRIAN K. LANDSBERG Conn. Gen. Stat. Ann. § 31-306 (West)

Mark L. Gross Del. Code Ann, tit. 19, § 2330

Attorneys Fla. Stat. Ann. § 440.16 (West)

Hawaii Rev. Stat. § 386-42

Ill. Ann. Stat. ch. 48, § 188.7(a) (Smith-Hurd)

Iowa Code Ann. § 85.42 (West)

Kan. Stat. Ann. §§ 44-508(c), 44-510(b)

Ky. Rev. Stat. § 342.075

La. Rev. Stat. Ann. § 23:1251 (West)

Me. Rev. Stat. Ann. tit. 39, § 2.4

Md. Ann Code art. 101, § 36(8) (a)

Mass. Ann. Laws ch. 152, § 82 (Michie/Law. Co-

op)

Minn. Stat. Ann. § 176.111 (West)

Mont. Rev. Codes Ann. § 92-413

Neb. Rev. Stat. § 48-124

Nev. Rev. Stat. § 616.510

N.H. Rev. Stat. Ann. § 281:2-IX

N.J. Stat. Ann. § 34:15-13(f) (West), declared

unconstitutional in Tomarchio v. Township of

Greenwich, 75 N.J. 62, 379 A.2d 848 (1977)

DECEMBER 1979

2a

N.M. Stat. Ann. § 52-1-17

N.Y. Work. Comp. Law § 16.1-a & b (McKinney)

N.C. Gen. Stat. § 97-39

N.D. Cent. Code § 65-05-17

Ohio Rev. Code Ann. § 4123.59(D) (1) (Page)

Okla. Stat. Ann. tit. 85, § 3.1(2) (West)

Or. Rev. Stat. § 656.204

R.I. Gen. Laws § 28-33-13(a), (b)

S.C. Code § 42-9-110

S.D. Codified Laws § 62-4-21

Tenn. Code Ann. § 50-1013 (a) (1)

Tex. Rev. Civ. Stat. Ann. art. 8306, § 8 abcicnt

Utah Code Ann. § 35-1-71(2)

Vt. Stat. Ann. tit. 21, § 634(2)

Va. Code § 65.1-66(1), (2)

Wash. Rev. Code Ann. § 51.32.050

W.Va. Code § 23-4-10(d)

Wis. Stat. Ann. § 102.51 (West)

Wyo. Stat. § 27-12-408

II. States in which workmen’s compensation law

distinguishes between widows and widowers for death

benefits by presuming that widows, but not widowers,

are dependent:

Ga. Code Ann. § 114-414

Idaho Code § 72-410

Ind. Code Ann. § 22-3-3-19 (Burns)

Mich. Stat. Ann. § 17.237 (331)

Miss. Code Ann. § 71-83-25

Mo. Ann. Stat. § 287.240(4) (a) (Vernon)

Pa. Stat. Ann. tit. 77, § 562 (Purdon)

® ©. &. GOVERNMENT PRINTING OFFICE; 1979 307381 166