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The Law for Equal Opportunities in the Workplace as reflected in case law

29.04.2005

|   Nurit Antman, Adv

To many of us, work is a place where we spend a great deal of our time. Therefore, we should do everything in our power in order to achieve the ultimate aim of equality devoid of discrimination.

A woman replied to a newspaper ad offering employment. During the interview, to which the candidate was invited, the employers manager explained that there were two available positions. The first was as a salesperson, which mainly entailed working away from the office. The second was for work performed in the office. The candidate was offered the second position only. When the candidate stated that she would prefer the position as salesperson, since it paid more and came with a company car, the manager made it quite clear that women are not suited for that position because there are problems involved in asking a woman to work after 4.00 pm The final result was that the candidate was not accepted to work in the company.

 

Was anything said during the interview which indicated prejudice against the fact that the candidate was a woman? If so, are there grounds for disqualifying the interview?

 

In the above case, Sharon Plotkin vs Eisenberg Brothers Ltd., the National Labor Court ruled that the fact that the candidate was a woman should never have been a consideration in her candidacy for the two positions, and that the employers conduct was unlawful and constituted discrimination.

 

The Law

Section 2 of the Law for Equal Opportunity in the Workplace 1988 [hereinafter "the Law"] states:

"(a) An employer shall not discriminate between employees or applicants for employment on the grounds of gender, personal status, status as parents, age, race, religion, nationality, national origin, personal views, party affiliation, or military reserve duty in each of the following instances: Acceptance for employment; Conditions of employment; Promotion; Training or professional studies; Dismissal or severance pay; Benefits and payments to an employee in connection with retirement."

 

The main purpose of the Law is to establish both formal and substantive equality, inter alia, in the workplace. Questions asked by a potential employer must be free of even implied stereotyping. In addition, refusal of a candidate on the grounds of race, national origin, gender or pregnancy, is unlawful discrimination.

 

The Supreme Court has ruled that equality is the cornerstone of the judicial system and a fundamental value of the State of Israel. The National Labor Court followed by ruling that the right to equality is a fundamental right without which human dignity does not exist. Discrimination is contrary to "public order" and "the public good" and its prevention is necessary to "redress the wrongs of this world". The distinction made by barring a person from a particular position is an affront to human dignity. Barring a woman from a particular position on the grounds that she is a woman insults her as a human being. Moreover, such an affront cannot be redressed by remuneration or any other form of "tangible" benefit, such as a higher salary or better working conditions.

 

The Exception to the Law

It should be noted that discrimination is possible where special attributes are required of a particular group, which does not exist in other groups and the required attributes are relevant to that specific type of work (Section 2 (c) of the Law). The National Labor Court required the interpretation of the above exception in the case of, The State of Israel vs. Gestaettner Israel Ltd. In this case, the company published an advertisement looking for an employee, using the masculine form only. The court, ruled that gender discrimination is permitted only in work whose nature and essence require only a particular type of gender.

 

Burden of Proof

Section 9 of the Law states with regard to the burden of proof that the initial burden of proving discriminatory conduct lies with the employee, but once the employee has met that obligation, and established prime facie grounds, the burden of proof passes to the employer. Additionally, there is no necessity to prove intent in order to impose responsibility on the employer. Deciding whether an issue is a matter of discrimination or not is objective and not motivated by stereotypes. Consequently, the motivation for differentiating is not the crux of the issue, but rather the final result is examined.

 

Remedies

Section 10 of the Law allows the Court to select a form of relief - it can choose to enforce labor relations and/or award compensation without proving financial damage "at a rate it deems fit under the circumstances".

 

The aim of compensation is twofold: compensation for actual damage, and punitive compensation. In order to send a warning to the body of employers and ensure that discrimination would be an unprofitable option, the Court awards painful punitive compensation. By way of illustration, an employer who retracted an offer of employment to a female candidate due to her pregnancy paid NIS 76,000 for loss of the employees earnings during the months of her pregnancy, NIS 30,000 for loss of the maternity grant, and NIS 50,000 in punitive damages for contravening the Law for Equal Opportunity in the Workplace.

 

Moreover, Judge Beinish expressed the courts willingness to act to take action in order to achieve equality in the High Court case of Eytana Niv vs National Labor Court:

"Now, in mid 2002, it is as if nothing has changed from ancient times when the man was the sole ruler of the family and in society; the woman did his bidding, obediently and without question this seems to be societys genetic code, indicating that women are inferior to men. If that is indeed societys genetic code, it would seem that we are required to mutate it, and it is the courts which will implement the mutation with great dedication until the equality of womens rights with mens rights is universally recognized. We shall settle for nothing less and will not let up until we have achieved our aim".

 

Conclusion

To many of us, work is a place where we spend a great deal of our time. Therefore, we should do everything in our power in order to achieve the ultimate aim of equality devoid of discrimination.

 

Human dignity and freedom go hand in hand with equality, and even more so equality in the workplace. Given the above, employer's must be reeducated to free themselves of stereotypes, either by genuinely assimilating the principle of equality in the workplace or by the use of the Courts to award painful punitive sanctions should they persist in perpetrating discrimination.

 


*The writer wishes to thank Orly Harel, Adv. for her assistance

**Translated from Hebrew by Norman Silbert

 

Nurit Antman is the founder of Antman Nurit Law Offices which practices Labor Law. E-mail: nu_law@bezeqint.net .

 

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