Family and Inheritance LawMarch 14, 2021
This article was written following a Facebook post published by Adv. Amy Bechor-Boni on the occasion of Women's Day 2021. A screenshot of the post is attached to this article.
From that post, I would like to address one line written in it: “My office is founded on a female organizational culture; only women work here.”
If this does not seem outrageous enough to anyone, imagine that I had written: “My office is founded on a male organizational culture; only men work here.” What media uproar would such a sentence create? What judgment would be handed down in such a case?
The Equal Employment Opportunities Law, 5748-1988, provides in Section 2(2): “An employer shall not discriminate between his employees or between job applicants on account of their sex…” Gender discrimination is discrimination prohibited by law.
Section 2(c) of the same law sets out an exception: ” It shall not be deemed discrimination under this section where it is required by the character or nature of the role or position”.
This section does not and cannot apply to a law office, but only to unique cases arising from a special need to employ specifically women or specifically men, and one cannot help but recall two interesting judgments on the subject.
The first judgment is Hearing 51/3-8 (National) State of Israel v. Gestetner Israel Ltd., PDA 24 65.
The case concerned an advertisement published by Gestetner: “Come and succeed with us if you are an excellent sales representative. This is your opportunity. We are looking for the best to expand our sales force. Required skills: negotiation ability. Good interpersonal skills. Relevant sales experience.”
Following the publication of the advertisement, an indictment was filed against Gestetner for an offense contrary to Section 8 of the aforementioned law, which provides: “An employer or a person in need of an employee shall not publish an advertisement concerning a job offer or referral to vocational training unless the job offer is worded in both the masculine and the feminine form, whether in the singular or the plural, and likewise shall not publish such an advertisement that contains discrimination under the provisions of Section 2”.
Gestetner's argument was that the job involved porterage work and lifting heavy loads, and was therefore intended for men. The Court rejected these arguments on the grounds that this matter was not mentioned at all in the advertisement, and even if it had been mentioned, it is not certain that it would have made a difference. Ultimately, Gestetner was convicted.
The National Labor Court held that the test must be objective, not subjective. In other words, it is not the opinion of the person offering the job that is decisive, but an objective test. The exception set out in Section 2(c) of the law must be given a narrow interpretation, meaning that only jobs which, by their nature and character, are specific to members of one sex alone may be filled by members of that sex.
Another interesting judgment that dismissed a discrimination claim is Labor Case (Tel Aviv) 16079-02-16 Jane Doe – Kol Dagan Ltd. (published in Nevo on 12.07.17).
The case concerned a bakery that published an advertisement worded as follows: “Bakery in Holon needs workers for the night shift, flexible hours – production and packing work !!! 052-2680665”.
A self-employed attorney responded to the advertisement, and in a phone call with the bakery manager, he told her that the job was not intended for women. As a result, that attorney filed a claim for compensation for discrimination under the law.
The bakery raised two arguments: a. The position requires lifting heavy loads, physical strength and considerable effort. b. The attorney's inquiry was not made in good faith for the purpose of seeking work at the bakery, but with the intention and aim of “looking for a lawsuit” and preparing a suitable legal background for it, while exploiting her training and occupation as an attorney.
The Court held that the attorney had indeed acted in bad faith: she did not express any resentment at what she was told, ended the conversation immediately, did not try to persuade that she was suitable for the job, and did not genuinely try to be hired. In these circumstances, the claim was dismissed.
Finally, it is also important to remember that the Equal Employment Opportunities Law applies only to workplaces employing 6 or more employees; nevertheless, the principle of equality also applies to workplaces employing fewer than 6 employees, by virtue of Basic Law: Human Dignity and Liberty and by virtue of the principle of good faith.
Author: Adv. Eliyahu Richter