Does section 3501 of the Social Security Act discriminate against a female employee who dies as a result of an industrial injury?

'[T]he Constitution . . . forbids the gender-based differentiation that results in the efforts of women workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men.' (Weinberger v. Wiesenfeld, 420 U.S. 636, 645, 95 S.Ct. 1225, 1232, 43 L.Ed.2d 514.) ⁵

[552 P.2d 116]

Page 116

Under the statute, the surviving spouse of a female employee who dies as the result of an industrial injury must establish dependency in fact to obtain benefits. No such burden is imposed upon the surviving spouse of a male employee. Moreover, the statute denies to a female employee the protection for her surviving spouse that a male worker receives for his spouse. Thus the statute commands 'dissimilar treatment for men and women who are . . . similarly situated.' (Reed v. Reed, supra, 404 U.S. 71, 77, 92 S.Ct. 251, 254, 30 L.Ed.2d 225; Frontiero v. Richardson, supra, 411 U.S. 677, 688, 93 S.Ct. 1764, 1771, 36 L.Ed.2d 583.) Absent a compelling state interest, sex cannot form the basis for the legislative classification provided by section 3501.