Compensation of Williams, Matter of, 79-7248

• Decision Date: 03 December 1981
• Docket Number: No. 79-7248,79-7248
• Citation: 635 P.2d 384,54 Or.App. 398
• Parties: In the Matter of the COMPENSATION OF the Beneficiaries of Marian A. WILLIAMS, Deceased. Floyd HEWITT, Claimant, Petitioner, v. STATE ACCIDENT INSURANCE FUND CORPORATION, Respondent. WCB; CA 19548.
• Court: Oregon Court of Appeals

Page 384

635 P.2d 384

54 Or.App. 398

In the Matter of the COMPENSATION OF the Beneficiaries of Marian A. WILLIAMS, Deceased Floyd HEWITT, Claimant, Petitioner, v. STATE ACCIDENT INSURANCE FUND CORPORATION, Respondent.

WCB No. 79-7248; CA 19548.

Court of Appeals of Oregon.

Argued and Submitted March 18, 1981.

Decided Oct. 26, 1981.

Reconsideration Denied Dec. 3, 1981.

Eric R. Friedman, Portland, argued the cause for petitioner. With him on the brief was Fellows, McCarthy, Zikes & Kayser, P. C., Portland.

Darrell E. Bewley, Appellate Counsel, State Acc. Ins. Fund Corp., Salem, argued the cause for respondent. With him on the brief were K. R. Maloney, Gen. Counsel, and James A. Blevins, Chief Trial Counsel, State Acc. Ins. Fund Corp., Salem.

Before BUTTLER, P. J., and WARDEN and WARREN, JJ.

WARDEN, Judge.

Petitioner appeals the Workers' Compensation Board's Order which denied his claim for benefits pursuant to ORS 656.226. ¹

Petitioner and Marian Williams were unmarried cohabitants from 1974 until Marian Williams' death on May 20, 1979, from a compensable industrial accident. Petitioner is the father of Ms. Williams' child. A joint declaration of paternity was filed by petitioner and Ms. Williams with the Vital Statistics Section of the Oregon State Health Division. The child is a recipient of benefits under ORS 656.226 as a result of Ms. Williams' injury and death. ²

The parties do not dispute that petitioner satisfies the criteria for benefits propounded in ORS 656.226, except that he is a surviving male rather than a surviving female. Petitioner contends that unless ORS 656.226 is interpreted to include benefits for surviving males as well as females, it is violative of the Equal Protection Clause of the United States Constitution and Article I, section 20, of the Oregon Constitution. ³

Petitioner relies on ORS 174.110(2) and ORS 174.115 ⁴ for his contention that the statute should be interpreted to provide benefits to petitioner. ORS 174.115 provides:

"It shall be the policy of the State of Oregon that all statutes, rules and orders enacted, adopted or amended after October 3, 1979, be written in sex-neutral terms unless it is necessary for the purpose of the statute, rule or order that it be expressed in terms of a particular gender."

ORS 174.110(2) provides:

"Words used in the masculine gender may include the feminine and the neuter."

ORS 174.110(2) is inapplicable. Petitioner asks us to interpret the word "woman" to include man. That would not be an interpretation of a word used in the masculine gender, so ORS 174.110(2) does not apply. ORS 174.115 also is not helpful. We cannot apply a "policy" to contradict the obvious meaning of the words employed by the legislature. The word "woman" is clear and merits no interpretation. We cannot employ judicial interpretation to thwart the plain meaning of the statutory language. Myers v. MHI Investments, Inc., 44 Or.App. 467, 471, 606 P.2d 652, rev. den. 289 Or. 107 (1980); Monaco v. U. S. Fidelity and Guar., 275 Or. 183, 188, 550 P.2d 422 (1976); Lane County v. Heintz Const. Co. et al., 228 Or. 152, 157, 364 P.2d 627 (1961).

Having determined that ORS 656.226 cannot, by statutory construction, be interpreted to include men, we must now determine whether the statute deprives petitioner of the equal protection of the law.

Legislation that provides benefits to women but not to men has been upheld in some recent cases as a manifestation of "benign" discrimination. Those cases allow disparate treatment of men and women when the legislature has recognized that women have been treated unfairly economically and the legislation is an attempt to remedy the situation. See Califano v. Webster, 430 U.S. 313, 97 S.Ct. 1192, 51 L.Ed.2d 360 (1977); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974). When the impetus for the legislation has not been to compensate women for discrimination but for other reasons, disparate treatment of men and women has been held unconstitutional. See Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977); Weinberger v. Wiesenfeld, 420 U.S. 636, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975); Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973). In Weinberger, 420 U.S. at 648, 95 S.Ct. at 1233, the Supreme Court stated:

" * * * (T)he mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme * * *."

Classifications based on sex must have a "close and substantial relationship to important governmental objectives." Personnel Administration of Mass. v. Feeney, 442 U.S. 256, 273, 99 S.Ct. 2282, 2293, 60 L.Ed.2d 870 (1970). See also, Weinberger v. Wiesenfeld, supra; Frontiero v. Richardson, supra; Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971).

ORS 656.226 is not an example of "benign" discrimination. ⁵ If the legislature meant to ameliorate economic discrimination against women, it would not have made a distinction between women with children and women without children. It is apparent from the statute that its purpose is to give assistance to the surviving members of the family, not assistance to women as a disadvantaged group. ⁶ In effect, however, it discounts a female worker's contribution to her family and deprives her family of benefits when those same benefits would be available to the family of a male worker.

This denigration of a female worker's contribution to her family is not benign. Furthermore, ORS 656.226 provides a gender-based distinction which has no relationship to the purpose of the legislation. This is analogous to the nonremedial purpose and denigratory impact of the statute found invalid in Weinberger. We can find no meaningful distinction between Weinberger and the case at hand. In Weinberger, the Supreme Court found that the section of the Social Security Act, 42 U.S.C. § 402(g), which created survivor benefits for a widowed mother and the couple's minor children in her care, but which denied a widower-father benefits, violated the right to equal protection. The Act discriminated against female wage-earners and the distinction was based on an "archaic and overbroad" generalization that male workers' earnings were vital to support the family while female workers' earnings were not. The Court determined that the purpose of the Act was not premised on any special disadvantages of women. Its purpose was to provide children deprived of a parent with the personal attention of the other. It was meant to assist the family. The gender-based distinction was, therefore, irrational. The Court reasoned in Weinberger, 420 U.S. at 651-652, 95 S.Ct. at 1234-35:

"The classification discriminates among surviving children solely on the basis of the sex of the surviving parent. Even in the typical family hypothesized * * * in which the husband is supporting the family and the mother is caring for the children, this result makes no sense. The fact that a man is working while there is a wife at home does not mean that he would, or should be required to, continue to work if his wife dies. It is no less important for a child to be cared for by its sole surviving parent when that parent is male rather than female. And a father, no less than a mother, has a constitutionally protected right to the 'companionship, care, custody and management' of 'the children he has sired and raised, (which) undeniably warrants deference and, absent a powerful countervailing interest, protection.' Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, (1212) 31 L.Ed.2d 551 (1972). Further, to the extent that women who work when they have sole responsibility for children encounter special problems, it would seem that men with sole responsibility for children will encounter the same child care related problems."

We hold that the disparate treatment afforded unmarried fathers by ORS 656.226 does not have a close and substantial relationship, or any relationship, to a legitimate governmental objective in the workers' compensation law. The statute, therefore, is unconstitutional insofar as it discriminates...