The petitioner received a salary a little over half that of a male employee with the same responsibilities and duties. She sued respondent under the Equal Pay Act (the “EPA”) and Equal Job Opportunities Act (the “EJOA”) and won because the respondent could not justify the discrepancy, though the district labor court also found that the respondent did not have a policy of paying female employees less than male employees. The lower court also determined that the petitioner had a legitimate claim under the EJOA because the respondent violated the EPA. For each violation, the labor court awarded her the difference between her salary and that of her male colleague (NIS 6,944). Each party appealed the damages to the National Labor Court, which held in a split decision that the right to contract trumps the right to equal pay and that an award under the EPA does not necessarily trigger a claim under the EJOA. The majority held that the purpose of the EPA is to compensate an employee for discrepancies in pay between herself and a male colleague who performs the same task in the same workplace while the purpose of the EJOA is to combat discrimination; the former does not require any evidence of discrimination while the latter does, although that discrimination need not be intentional. The High Court of Justice rejected the appellate court’s argument that the right to contract trumps the right to equal pay, calling it “a fig leaf to cover up real discrimination,” but agreed that the EPA and EJOA have different elements, purposes, burdens of proof, and remedies. The High Court held that an employee has the burden of demonstrating discrimination, but that burden shifts to the employer under certain circumstances, like a pay discrepancy. A larger pay discrepancy means a more significant burden for the employer. In this case, the employer had the burden to prove that the petitioner’s lower salary was solely based on her request for a lower salary and not her gender. The High Court held that an employer cannot justify a 35% difference in pay solely based on an employee’s salary request when hired. However, due to her delay in filing, the Court voided the respondents’ damages obligation under the EJOA.
Israel
Domestic Case Law
Goren & The Women's Lobby of Israel v. Home Center (Do It Yourself) Ltd. & The National Labor Court in Jerusalem Supreme Court (sitting as the High Court of Justice) (2012)
Ragen, et al. v. Ministry of Transport, et al. Supreme Court (2011)
The petitioners sued the defendants for operating “mehadrin” bus lines for orthodox and ultra-orthodox Jews. Petitioners argue that these bus lines discriminate based on gender by allowing men to board and sit in the front of the bus while requiring that women board by the rear door, sit in the back, and dress modestly. Petitioners claim these restrictions violate their fundamental and constitutional rights to equality, dignity, freedom of religion, and freedom of conscience. Petitioners refused to comply with the gender restrictions, which respondents claimed were not compulsory but voluntary and thus legal. Petitioners, however, countered that the gender separation on mehadrin lines is not voluntary and that they were subjected to verbal harassment, threatened with physical violence, humiliated, and forced to leave the bus when they declined to observe the gender separation. After the respondents agreed to an examination of public transportation arrangements on lines serving the ultra-orthodox sector by an independent committee and the committee delivered its analysis, the Court ordered respondent 1 to instruct respondent 2 to publicize the cancellation of the separation arrangements (within 10 days of the date on which the judgment was rendered), and ordered respondent 2 to carry out its instructions within 30 days of the judgment. Within that period of time, respondents 2 and 3 were to post signs regarding the cancellation in all buses formerly subject to “mehadrin” arrangements, without exception.
Israel v. Ben-Hayim Supreme Court (2005)
The respondent, the manager of the Postmen Department at the Benei Berak branch of the Postal Authority, was acquitted of sexually harassing and victimizing a temporary employee, but convicted of unbecoming conduct. The Civil Service Disciplinary Tribunal (the “Tribunal”) found that the respondent promised to a promotion to the complainant, that he had conducted a sexual relationship with the complainant, and that he tried to prevent the complainant from making a complaint against him, which stated that he visited her apartment for several months and had sexual intercourse with her against her will. As a result, the complainant felt exploited and humiliated. The Tribunal held that the State failed to prove that the respondent abused his authority. The Tribunal then approved the sentencing agreement that the parties reached, although it admitted it was lenient. On appeal by the state, the Supreme Court held that the respondent’s power to influence the professional future of the workers was considerable and that he held a position of considerable power over the complainant, who was 22 years old at the time of the conduct while the respondent was 20 years older than her, which added to the his control. It follows that the complainant consented to the sexual acts was given because the respondent abused his authority over her, and therefore it was not a voluntary and genuine consent but instead “prohibited consensual intercourse.” The Court stated that “abuse of authority” need not involve a direct threat; in sexual harassment cases such abuse may be “express or implied, direct or indirect” and is no less potent if it is “in a veiled manner.” The Court added a one-year suspension from any managerial position to the sentence imposed by the lower Tribunal, explaining that this still amounted to a lenient punishment for the offense committed.
Frudenthal v. Israel Supreme Court (sitting as the Court of Criminal Appeals) (2003)
The appellant appeals his conviction for trafficking in persons for the purposes of prostitution in violation of Penal Law sec. 203A(a), pimping for prostitution, and threats and false imprisonment. The appellants’ two co-conspirators reached plea agreements with prosecutors. The appellant generally admits the underlying facts of the case, but argues on appeal that these facts do not amount to trafficking in persons but rather pimping for prostitution, which has a lower sentence. The appellant “acquired” the two complainants in November of 2001 and brought them to a facility in Tel Aviv operated by the first co-conspirator for the purpose of employing them as prostitutes. Appellant “imprisoned the complainants in the facility, took their passports, and abused them physically.” The first co-conspirator supervised the complainants, forced them to work as prostitutes, and collected fees. In or around February 2002, the first co-conspirator transferred the complainants to the custody and supervision of the appellant. The appellant housed the complainants in his apartment and managed all aspects of their work as prostitutes, from arranging clients to fee collection. The appellant made each complainant pay him part of her profits for food and rent. The complainants were not allowed to leave the apartment without the appellant’s permission and supervision. The appellant argued that the lower court erred by not applying a narrow definition of “purchase” as used in property law. The Supreme Court held that section 203A(a) prohibits any deal intended to create a property relationship in which a person acquires rights in another human being. The meaning of the phrases “sale and purchase” in section 203A(a) refer to any deal, in exchange for any consideration, that grants a person any kind of property right in another human being who serves as the object of the deal. It is immaterial whether the business arrangement is under the guise of ownership, rental, borrowing, partnership, or any other means of creating a property interest in a person. The Court held that the appellant’s actions clearly constituted a business arrangement that created a property interest in a human being and that, therefore, these circumstances met the legal criteria for the crime of trafficking in persons.
Seedis v. Chief Execution Officer & Schmuel Seedis Supreme Court (as an article 55 Special Tribunal) (1954)
A woman petitioned the article 55 Special Tribunal, which decides whether a case is of personal status and thus within the exclusive jurisdiction of a Religious Court, for review of the Rabbinical Court’s decision to allow her husband to receive rent from a property belonging to the plaintiff. The Rabbinical Court exercised jurisdiction pursuant to Article 51 and 53 of the Palestine Order in Council 1922, which states that “suits regarding marriage” or “matters of marriage” are within the exclusive jurisdiction of the religious courts. The Special Tribunal agreed with the Rabbinical Court’s decision to exercise jurisdiction over the suit, reasoning that articles 51 and 53 are not limited to questions regarding the existence of a marriage, but also include claims for the enforcement of rights derived from marriage, including property rights.
Israel Women’s Network v. Government Supreme Court of Israel (1994)
Three men were appointed to the boards of directors of Government corporations when neither board was comprised of any women members at the time of appointments. The court found each appointment unlawful under s. 18A of the Government Corporations Law (Amendment No. 6) (Appointments), which required ministers to appoint, “in so far as it is possible in the circumstances of the case, directors of the sex that is not properly represented at that time on the board of directors of the corporation.” As a result, the court set aside each of the three appointments without prejudice.
Migdal Insurance Company Ltd v. Abu-Hana Supreme Court of Israel (2005)
The court held that loss of earnings damages for minor children should be based upon the national average wage. Factors that might warrant deviation from this presumption include the child’s age, when there is a real chance the child would have worked in another country, and other concrete characteristics of the injured child. Here, because the child in question was injured when she was only five months old, assumptions regarding her future were inappropriate.
Shakdiel v. Minister of Religious Affairs Supreme Court of Israel (1988)
The petitioner, a female resident of Yerucham and an Orthodox Jew, was disqualified from the local religious council because of a tradition of not appointing women as members of religious councils. The court found, however, that although the religious council provided services that were religious in character, the qualifications of the council were solely dictated by the general legal system. Thus, the exclusion of the petitioner based upon her gender was discriminatory.
Dr. Naomi Nevo v. National Labour Court Supreme Court of Israel (1990)
The petitioner challenged a pension rule requiring women to retire at age 60 while requiring men to retire at age 65. The court held that the rule was discriminatory, because it treated women differently from men where there was no relevant difference between men and women such that the rule served a legitimate purpose. In addition, the fact that the Male and Female Workers (Equal Retirement Age) Law, which corrected the difference, came into force subsequent to the judgment of the lower court did not preclude a showing of discrimination prior to the law coming into effect.
Barriya v. The Kadi of the Sharia Moslem Court Supreme Court of Israel (1955)
The aunt of three children applied to a Moslem Religious Court to be appointed as their guardian. The children’s mother argued that she was entitled to the guardianship under the Women’s Equal Rights Law. The mother, believing that the religious judge (the Kadi) would apply religious law and disregard the Women’s Equal Rights Law, applied for an order staying or setting aside the proceedings of the religious court. The court held that the issue was not ripe for review, as there was no indication that the Kadi would disregard civil law and rely only upon religious law. The order in which the Kadi decided to proceed was a matter of procedure with which the court would not interfere.
Najar v. State of Israel Supreme Court of Israel (2005)
The appellant, a Bedouin man, was convicted for murder with malice aforethought for killing his sister after she insisted that she would travel to Egypt alone. The appellant claimed that his charge should be reduced as the killing was the result of provocation. He further argued that the court should take into account that he was defending his family honor, as it was unacceptable in Bedouin culture for unmarried women to travel alone. The court ruled that no argument of “family honor” as a motive for killing someone will be allowed by a court in Israel. The human dignity of the victim and the sanctity of life take precedence over family honor.
Nahmani v. Nahmani Supreme Court of Israel (1996)
The parties, a married couple, underwent in-vitro fertilization in Israel for purposes of implanting the fertilized ova in a surrogate mother in the United States. Before the ova could be implanted in a surrogate mother, however, the husband left the wife. The wife applied to the Israeli hospital for release of the fertilized ova, intending to move forward with the surrogacy plan in the United States. The husband opposed the release of the ova. The court held that the husband was estopped from opposing the surrogacy procedure, because he had consented to it and the wife reasonably relied on his consent by going through with the fertilization process. In addition, Jewish heritage is a cornerstone of the Israeli legal system, which values the procreation of children. Several of the justices stated that the right to have children is more important than the right not to have children.
Shalem v. Twenco Ltd Supreme Court of Israel (2006)
The appellant wife sought a declaration that under the joint ownership rule, she owned half the rights in a residential apartment that was registered in her husband’s name only, and her interest in the apartment was protected against attachment by her husband’s creditors. The court held that date spouses satisfy conditions of the joint ownership rule (sound relationship, united efforts) is the relevant date for “purely family assets” like the residential apartment in question. But not until a “critical date” in the marriage, or when the marriage faces a real danger to its continuation because of a serious crisis between the spouses, does joint ownership of other rights and liabilities crystalize. Here, because the appellant’s marriage had not reached such a “critical date,” her interest in the apartment was protected against attachment.
State of Israel v. Ben-Hayim Supreme Court of Israel (2006)
The accused, a male manager of a branch of the Postal Authority, was convicted of unbecoming conduct under the Civil Service (Discipline) Law for sexually harassing a female temporary employee at his branch. The parties reached an agreement under which the accused was disciplined with severe reprimand, loss of one month’s salary, and reduction of one grade for a period of a year. The court held that the disciplinary measures should be significantly stricter, considering that the accused deliberately abused his authority, had considerable influence over the victim’s professional future, was 20 years older than the victim, and was aware that the victim had recently lost her father and was emotionally vulnerable.