Gay Workers Comp Denied

N.Y. appeals court rules against partner of flight attendant lost in 2001 crash

A New York appellate court in Albany rejected an attempt by the surviving domestic partner of a flight attendant who died in a plane crash while on the job in November 2001 to get survivor’s benefits under the state’s Workers’ Compensation Law.

The unanimous ruling issued on March 17 refused to interpret the statute broadly in order to award benefits, and dismissed the argument that failing to provide the benefits violated constitutional equality requirements.

When Joe Lopes, an American Airlines flight attendant, died in the mysterious air crash of a flight that had just taken off from Kennedy Airport headed for the Dominican Republic in November 2001, he left behind his partner of 21 years, William Valentine. Lopes and Valentine had registered as domestic partners under New York City’s comprehensive Domestic Partnership Ordinance. In common with many long-term couples, they jointly owned an apartment, had joint bank accounts and other investments and had taken the available legal steps to cement their partnership through wills and powers of attorney.

But when Valentine took the routine step of filing for Workers Compensation survivors benefits, American Airlines protested and the Workers Compensation Board ruled against him.

Represented by Lambda Legal staff attorney Adam Aronson, Valentine appealed the case to the courts. In New York State, appeals from decisions of the Workers Compensation Board go to the 3rd Department of the Appellate Division, based in Albany.

Noting that the Legislature had actually amended the Workers Compensation Law in the aftermath of September 11, 2001, to authorize survivors’ benefits for domestic partners of workers who died in the World Trade Center attacks, Valentine contended that he should be treated similarly, and that any failure by the state to do so would violate the constitutional requirement of equal protection of the laws.

In fact, Lambda originally pressed Valentine’s case with the Workers Compensation Board in tandem with a similar claim by Larry Courtney, who lost his partner of 14 years, Eugene Clark, who was at work at Aon Consulting on the 102nd floor of Two World Trade Center on September 11, 2001. Courtney received workers compensation survivor benefits under the legislation signed in 2002 by Gov. George Pataki that created a specific benefit for surviving 9-11 domestic partners.

Ironically, after September 11, American Airlines offered flight attendants the opportunity to take a leave of absence, but Valentine and Lopes decided against it.

“He paid for that decision with his life,” said Adam Aronson, Valentine’s attorney at Lambda Legal, told Gay City News in a 2003 interview. “American Airlines paid insurance premiums for Lopes for 18 years and his family. His spouse deserves this.”

In the new appellate court ruling, Justice Anthony T. Kane turned first to Valentine’s statutory argument, insisting that the “plain meaning of the words used” by the Legislature in defining eligibility must be followed by the court. In this case, the statute says that a surviving “spouse” for purposes of survivor’s benefits is a “legal spouse.”

“It cannot seriously be contended that the Legislature envisioned that non-married domestic partners would be considered legal spouses when it enacted and amended the statute at the beginning of the last century, nor when it amended the state in 1979 merely to render it gender neutral,” wrote Kane.

Since Lopes and Valentine were not married, Valentine could not claim to be a surviving spouse. Valentine was not challenging the marriage law in his lawsuit.

Turning to the constitutional argument, Kane first found that the Workers’ Compensation Law is immune to any challenge under the state’s constitution. New York’s constitution provides specific authorization for the Legislature to pass laws protecting workers, and New York courts have interpreted that express authority to insulate state labor laws from attack under other articles of the Constitution. Consequently, Valentine’s only line of constitutional attack had to depend on federal constitutional law.

There Valentine ran into a real roadblock—the continuing failure by federal courts to engage in a serious analysis of how sexual orientation claims should be analyzed under the federal Constitution’s 14th Amendment’s equal protection clause. In the leading gay equal protection case, Romer v. Evans (1996), the Supreme Court failed to produce such an analysis, finding the Colorado constitutional amendment that banned any state or local gay nondiscrimination laws to be so irrational and biased on its face that no in-depth analysis was necessary to find it unconstitutional. Ever since then, lower federal courts have been treating Romer v. Evans as a precedent, holding that anti-gay discrimination claims need only be subjected to the least rigorous type of judicial review, the so-called “rational basis” test under which virtually any reason put forward to justify a law that is not clearly discriminatory will pass judicial muster.

Justice Kane focused on administrative efficiency and convenience, contending that it was rational for the Legislature to limit benefits on the basis of marriage, since the fact of marriage is easy to determine and does not require extensive fact-based litigation. By contrast, since the statute spells out no criteria for protecting unmarried partners, administrators would have to undertake a burdensome investigation of each application to determine which relationship would qualify.

Kane also disputed that the post-September 11 amendment should be interpreted in Valentine’s favor, contending that the unique nature of those events justified the Legislature in adopting a narrowly focused policy to benefit the survivors of those who were killed.

The next step for this claim would be the New York Court of Appeals, which has discretion to refuse to review it. Already pending before that court is a petition by the City of New York, seeking review of Justice Ling-Cohan’s same-sex marriage ruling. The timing is interesting, since a petition in this case would bring forcibly to the attention of the judges a practical consequence of New York’s failure to allow same-sex marriage.

Ironically, had Lopes and Valentine entered into a Vermont civil union, their claim might have stood a better chance, since the civil union law there describes those who are united under its terms as “spouses,” a factor underlying a ruling by another New York court that a surviving Vermont civil union partner could bring a wrongful death action.

An appellate ruling in that case is expected soon.

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