For affirmance as modified -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford, Schreiber and Handler. For reversal - None. The opinion of the court was delivered by Handler, J.
[75 NJ Page 65] Petitioner Vincent Tomarchio filed a dependency claim for workers' compensation death benefits under N.J.S.A. 34:15-13 against respondent Township of
Greenwich alleging that he was the widower and sole dependent of Carmella Tomarchio, who sustained a fatal compensable accident on December 20, 1972. The Township admitted employment connection but denied that petitioner was a dependent of the deceased.
Following a hearing in the Division of Workers' Compensation, a Judge of Compensation found the dependency provision, N.J.S.A. 34:15-13(f), unconstitutional as violative of equal protection in that it affords widows a conclusive presumption of total dependency but requires widowers to prove their dependency. The judge held that equality of treatment requires the conclusive presumption of dependency be extended to widowers and ordered that petitioner receive compensation as a total dependent. The judge further concluded that the gender-based distinction with respect to the period of compensation under N.J.S.A. 34:15-13 was discriminatory and ordered that the duration of petitioner's compensation be governed by the provisions applicable to widows. In the alternative, the judge found that petitioner was actually dependent upon the earnings of decedent and was entitled to compensation as a partial dependent under the statutory standard applicable to widowers. In computing the basis for the death benefit award, the judge combined earnings from decedent's employment with the Township and another separate, part-time job while excluding any consideration of the value of decedent's services as a homemaker.
An appeal from the judgment entered was taken by the Township, and this Court, on its own motion, certified the appeal then pending unheard in the Appellate Division. 71 N.J. 518 (1976). The foremost issue on appeal is whether the differential treatment of widows and widowers under N.J.S.A. 34:15-13 is unconstitutional as violative of equal protection. Subsidiary issues include the effect of decedent's multiple employments and homemaking services on the computation of the compensation award.
The Workers' Compensation Act prescribes differential treatment for widows and widowers who seek death benefits under N.J.S.A. 34:15-13. The statute provides that the term "dependents" encompasses one who is a husband or a wife of a deceased worker at the time of death but that "[d]ependency shall be conclusively presumed as to the decedent's widow * * *." N.J.S.A. 34:15-13(f). A widower, however, must prove dependency upon his deceased spouse. Furthermore, while this conclusive presumption entitles a widow to compensation as a total dependent, widower benefits are correlated to the degree of dependency that existed at the time of death. N.J.S.A. 34:15-13(f). Moreover, compensation is payable to a widower for 450 weeks, but to a widow for the entire period of widowhood. If a widow remarries, however, she is entitled to receive compensation still otherwise due her or $1,000, whichever is less (N.J.S.A. 34:15-13(f)); and if she should become employed after 450 weeks, earnings from employment are deducted from the compensation payable to her (N.J.S.A. 34:15-13(j)).
Petitioner contends that this statutory scheme differentiating between widows and widowers violates the Equal Protection Clause of the Fourteenth Amendment. In addressing this contention, the test to assess the validity of statutory differences in treatment predicated on sex under the Equal Protection Clause is whether the differential classification is related substantially to the achievement of an important governmental objective. It is a test fashioned by the United States Supreme Court in several recent cases. E.g., 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); compare Frontiero v. Richardson, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 (1973); see also Craig v. Boren, 429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976); Reed v. Reed,
404 U.S. 71, 92 S. Ct. 251, 30 L. Ed. 2d 225 (1971); Gunther, "Forward: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection," 86 Harv. L. Rev. 1, 20-24 (1972).
Califano v. Goldfarb, supra, is especially apposite since the Court considered the distribution of survivors' benefits under the Social Security Act and invalidated a differential dependency requirement analogous to that found in our Workers' Compensation Act. The challenged sections provided that benefits derived from the earnings of a deceased husband are payable to his widow regardless of dependency but a widower was required to prove that he was at least one-half dependent upon his deceased wife in order to receive benefits. These differential dependency provisions, according to the Court, failed in any significant or substantial way to achieve an important governmental purpose and resulted in invidious discrimination.
Weinberger v. Wiesenfeld, supra, relied upon extensively by the Court in Goldfarb, is similar. Plaintiff attacked the statutory section which provided Social Security survivor's benefits to widows but not to widowers caring for children of a deceased wage earner. The Court could find no redeeming grace for the gender-based distinction since it actually disserved the female wage earner by depriving her of the protection accorded men, and even placed a male survivor with children to raise at a comparative disadvantage. As important, it treated children unequally depending upon whether their mother or father was the surviving parent. In concluding that the classification based on sex offended equal protection, the Court found these disparate benefits to be virtually indistinguishable from the statutory scheme considered in Frontiero v. Richardson, supra, where the Court invalidated statutory provisions which enabled a serviceman to claim his wife as a dependent regardless of her actual dependency, but required a servicewoman seeking similar benefits to prove that her husband was actually dependent upon her for more than one-half of his support. [75 NJ Page 69] In the light of these cases, it would appear essential to assure equal protection under the Constitution that the purposes of a statutory plan based upon differences in sex be thoroughly and cautiously scrutinized to ascertain the genuine objective of the legislation and that there be a critical evaluation of whether the differentiation based upon sex materially advances the legislative goal. Indeed, four members of the Court in Frontiero were more emphatic and punctilious in their articulation of the proper confrontation of an equal protection claim based on sex discrimination, expressing the view that sex-based distinctions are "inherently suspect" and should be gauged by a standard of "strict scrutiny." 411 U.S. at 682, 93 S. Ct. at 1768, 36 L. Ed. 2d at 589. Thus, in assessing the constitutional sufficiency under equal protection strictures of sex-based classifications, we conceive that the judicial approach must be scrupulous and skeptical, and the court must be satisfied completely that there is an important governmental objective which is substantially advanced by gender-based classification. Craig v. Boren, supra.*fn1
Two state courts have recently applied these principles to invalidate proof of dependency requirements imposed on widowers under their respective workers' compensation statutes. Arp v. Workers' Comp. Appeals Bd., 19 Cal. 3d 395, 138 Cal. Rptr. 293, 563 P. 2d 849 (Sup. Ct. 1977); Passante v. Walden Printing Co., 53 A.D. 2d 8, 385 N.Y.S. 2d 178 (App. Div. 1976). In Arp, the Supreme Court of California found the conclusive presumption of dependency afforded widows who sought death benefits, when contrasted with the proof of actual dependency required of widowers, to be discriminatory. The court held that, at the level of the wage earner, the statute denies a female employee the same protection that a male worker receives for his spouse. 19 Cal. 3d at 406-407, 138 Cal. Rptr. at 299-300, 563 P. 2d at 855-856. The court also found the statute to impose an impermissible burden on the surviving widower from which the surviving widow was free. Id. Similarly, the court in Passante, noting that workers' compensation death benefits are derived from the employment relationship itself, said that "whereas the working man * * * is given the security of knowing that in the event of his work-related death, his widow * * * will not suffer the ...