Swafford v. Tyson Foods, Inc.

• Decision Date: 23 September 1981
• Docket Number: No. CA,CA
• Citation: 621 S.W.2d 862,2 Ark.App. 343
• Parties: Gerry SWAFFORD, Widower of Delores Swafford, Appellant, Deceased, v. TYSON FOODS, INC., Appellee. 80-463.
• Court: Arkansas Court of Appeals

Page 862

621 S.W.2d 862

2 Ark.App. 343

Gerry SWAFFORD, Widower of Delores Swafford, Appellant, Deceased, v. TYSON FOODS, INC., Appellee.

No. CA 80-463.

Court of Appeals of Arkansas.

Sept. 23, 1981.

Davis, Bracey & Heuer, P.A. by Sam T. Heuer, Springdale, for appellant.

Steve Clark, Atty. Gen. by Marion A. Humphrey, Asst. Atty. Gen., Litigation Division, Little Rock, amicus curiae for appellant.

Davis, Bassett, Cox & Wright, Fayetteville, for appellee.

CLONINGER, Judge.

The Arkansas Workers' Compensation Commission found that Delores Swafford, an employee of appellee Tyson Foods, Inc., died as the result of a compensable injury under the Arkansas Workers' Compensation Act, but that her husband, appellant Gerry Swafford, was not entitled to compensation benefits as her dependent because he was not incapacitated to support himself. The Commission awarded benefits to the two minor children of Gerry and Delores Swafford.

Ark.Stat.Ann. § 81-1302(l) (Repl. 1976) defines "widow" as follows:

'Widow' shall include only the decedent's legal wife, living with or dependent for support upon him at the time of his death.

Ark.Stat.Ann. § 81-1302(m) (Repl. 1976) defines "widower" as follows:

'Widower' shall include only the decedent's legal husband who, at the time of her death, was living with and dependent upon her for support and was incapacitated to support himself.

Ark.Stat.Ann. § 81-1315 (Repl. 1976) provides in pertinent parts as follows:

(c) ... compensation for the death of an employee shall be paid to those persons who were wholly and actually dependent upon him in the following percentage of the average weekly wage of the employee, and in the following order of preference:

First. To the widow if there is no child, thirty-five per cent (35%), and such compensation shall be paid until her death or remarriage. Provided, however, the widow shall establish, in fact, some dependency upon the deceased employee before she will be entitled to benefits as provided herein.

To the widower if there is no child, thirty-five per cent (35%), and such compensation shall be paid during the continuance of his incapacity or until remarriage. Provided, however, the widower shall establish, in fact, some dependency upon the deceased employee before he will be entitled to benefits as provided herein.

Second. To the widow or widower if there is a child, the compensation payable under the First above, and fifteen per cent (15%) on account of each child.

It is clear that under § 81-1302, supra, a widow need only be either living with or dependent for support upon her husband at the time of his death to be entitled to compensation, while a widower must both be living with and dependent upon his wife for support at the time of her death, and be incapacitated to support himself, to be eligible for the same compensation. It is equally clear that although § 81-1315(c), supra, provides that compensation shall be paid only to those persons who are wholly and actually dependent upon the decedent, without distinction as to class, a widow is entitled to compensation until her death or remarriage, while a widower shall be paid during the period of his incapacity or until remarriage.

The Administrative Law Judge found that Ark.Stat.Ann. § 81-1302(m) is unconstitutional as being in violation of the Equal Protection clauses of the Fourteenth Amendment to the United States Constitution, and Article II, Section 18, of the Arkansas Constitution, and awarded compensation to appellant and the two minor children. The Full Commission observed that the distinction made in the Act may be unconstitutional, but that it is for the courts and not for an administrative law judge or a quasi-judicial commission to declare the Act unconstitutional if, in fact, it is.

The issue raised by the appellant on this appeal is whether Ark.Stat.Ann §§ 81-1302(m) and 81-1315(c) constitute impermissible gender-based discriminations against widowers under the Equal Protection clauses of the U.S. Constitution and the Arkansas Constitution. Appellee urges that even though the dependency section may well be unconstitutional, the decision of the Commission should be affirmed because from a factual standpoint appellant was not wholly and actually dependent upon the deceased as were the two minor children.

We find that Ark.Stat.Ann. §§ 81-1302(m) and 81-1315(c) are impermissible gender-based discriminations and that appellant was wholly and actually dependent upon decedent at the time of her death.

In a long line of cases the United States Supreme Court has not hesitated to strike down gender classifications that result in benefits or privileges being granted or denied on the basis of the sex of the qualifying person. In Royster Guano Company v. Virginia, 253 U.S. 412, 40 S.Ct. 560, 64 L.Ed. 989 (1920) the Court stated that a classification must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislature. In Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), an Idaho statute which provided that in the appointment of an administrator "males must be preferred to females," was declared to be a violation of the Equal Protection clause.

In Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) a serviceman could claim his wife as a dependent without regard to whether she was in fact dependent upon him, but a servicewoman could not claim her husband as a dependent unless he was in fact dependent upon her for over one-half of his support. The discrimination was invalidated. The case of Califano v. Goldfarb, 430 U.S. 199, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977) dealt with the Social Security Act provision granting survivor's benefits to a widow regardless of dependency, but providing the same benefits to a widower only if he had been receiving at least half of his support from his deceased wife. In declaring the provision invalid, the Court stated that "female insureds received less protection for their spouses solely because of sex."

Not every gender-based discrimination is set aside on constitutional grounds, but to escape invalidation it is necessary that they serve important governmental objectives and the discriminatory means employed must be substantially related to the achievement of those objectives. Califano v. Wescott, 443 U.S. 76, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) and Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979).

At issue in the case of Wengler v. Druggist Mutual Insurance Company, et al, 446 U.S. 142, 100 S.Ct. 1540, 64 L.Ed.2d 107 (1980) was the constitutionality of the provisions of the Missouri Workers' Compensation Laws which denied a widower benefits based on his wife's work-related death unless he was incapacitated or proved dependency, but granted a widow benefits without her having to prove either dependency or incapacitation. The only justification offered by the appellees for not treating males and females alike was the assertion that most women are dependent on male wage earners and that it is more efficient to presume dependency in the case of women. The Court found that the Missouri law discriminated against men because it deprived them of survivor's benefits to which they would be entitled except for their sex, and it discriminated against women because it provided them with less protection for their spouses solely because of sex. The Court then observed:

Surely the needs of surviving widows and widowers would be completely served either by paying benefits to all members of both classes or by paying benefits only to those members of either class who can demonstrate their need. Why, then, employ the discriminatory means of paying all surviving widows without requiring proof of dependency, but paying only those widowers who make the required demonstration?

The Arkansas Supreme Court has declared invalid a number of gender-based laws. In Hatcher v. Hatcher, 265 Ark. 681, 580 S.W.2d 475 (1979), a statute providing for maintenance and attorney's fees for wives only was invalidated; in Lucas v. Handcock, 266 Ark. 142, 583 S.W.2d 491 (1979), the Court ruled unconstitutional a statute which allowed illegitimate children to inherit from their mother and not their father, and in Noble v. Noble, 270 Ark. 602, 605 S.W.2d 453 (1980) gender-based alimony and property division statutes were declared unconstitutional. Two recent Arkansas cases, Hess and Morton v. Wims, 272 Ark. 43, 613 S.W.2d 85 (1981) and Stokes v. Stokes, 271 Ark. 300, 613 S.W.2d 372 (1981), struck down gender-based statutes pertaining to the right of a widow, but not a widower, to take against the will and to receive dower interests and statutory allowances, and Article IX, Section 6 of the Constitution of the State of Arkansas relating to homestead.

In the case now before this Court it is obvious that the sections of the Workers' Compensation Act sought to be invalidated are gender-based discriminations. As the United States Supreme Court observed in Wengler the burden is on those defending a discrimination to make out a claim to justification. However, in this case no one attempts to justify the discrimination; in fact, appellee agreed that there was probably an unconstitutional discrimination, and the Attorney General of the State of Arkansas, in its amicus curiae brief, concedes that the distinction between "widow" and "widower" may constitute an impermissible gender-based discrimination. In the face of what we find to be a gender-based discrimination, and in the absence of any showing that the discrimination serves an important governmental objective, we hold that the discriminatory sections of the Arkansas Workers' Compensation Act are violative of the Equal Protection clauses of the federal and state constitutions.

The secondary question presented is whether the constitutional defect should be cured by extending the rights of...