Why Federal Equal Protection Challenges to Workers’ Compensation Statutes Don’t Work

I do not believe that interference with workers’ compensation rights are subject to vindication under the equal protection clause of the United States Constitution (even when the interference is vicious or unfair) because the obstruction does not disadvantage a suspect class or impermissibly interfere with fundamental rights as currently conceived in American law. Thus, for anyone seeking to challenge a workers’ compensation law because it singles out workers’ compensation claimants for unfair treatment, I recommend either selection of a different federal theory (I’ll be discussing federal due process analysis and expanding upon 9th Amendment theory in upcoming posts) or mounting a challenge under state constitutional provisions. (I think there may be some room to argue for intermediate scrutiny, but such approaches have not yet been successful – I write about them here.) Every couple of years I feel it necessary to go through this exercise for the benefit of those healthy individuals whose hobby is not federal constitutional law.

The appropriate standard of review outside of the categories I have mentioned above is whether the difference in treatment between classifications (workers' comp/non-workers' comp) rationally furthers a legitimate state interest. In general, the Equal Protection Clause is satisfied so long as there is a plausible policy reason for the classification, see United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 174, 179 (1980). But states are not required to convince the courts of the correctness of their legislative judgments. Rather, “those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.” Minnesota v. Clover Leaf Creamery Co., 449 U.S. 456, 464 (1981); Nordlinger v. Hahn, 505 U.S. 1, 11 (1992); Armour v. City of Indianapolis, 566 U.S. 673, 685 (2012). A legislature need not “actually articulate at any time the purpose or rationale supporting its classification.” Nordlinger at 15. Rather, the “burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it.” Madden v. Commonwealth of Kentucky, 309 U.S. 83, 88 (1940); Armour at 681. A law is constitutionally valid if “there is a plausible policy reason for the classification, the legislative facts on which the classification is apparently based rationally may have been considered to be true by the governmental decisionmaker, and the relationship of the classification to its goal is not so attenuated as to render the distinction arbitrary or irrational.” Nordlinger at 11. And there is such a plausible reason if “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993). A classification is generally valid as long as a rational basis is plausible, even if the legislature did not expressly endorse it. See Beach Commc’ns at 313–15; Indiana Petroleum Marketers & Convenience Store Ass’n v. Cook, 808 F.3d 318, 322 (7th Cir. 2015). Rational-basis review tolerates overinclusive classifications, underinclusive ones, and other imperfect means-ends fits. Heller v. Doe, 509 U.S. 312, 319–320 (1993); Gregory v. Ashcroft, 501 U.S. 452, 473 (1991); Vance v. Bradley, 440 U.S. 93, 107–09 (1979). The standard also imputes “a strong presumption of validity” on the contested classification. Beach Commc’ns at 314–15. To over-come that presumption, a challenger must negate “every conceivable basis which might support” the classification. St. Joan Antida High School, Inc. v. Milwaukee Public School District, 919 F.3d 1003, 1010 (7^th Cir. 2019).

My advice: Pick another theory.

Michael C. Duff