# Amicus Brief — Wengler v. Druggists Mutual Insurance

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0871%3A6

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Brief
- **Published:** January 1, 1980
- **Citation:** 446 U.S. 142

## Text

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

PCNA 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0871%3A6. Public record. Not legal advice.