Case note: broadening protection against gender discrimination

By Tsruya Sicron (third year law student, Hebrew University of Jerusalem)

In a recent judgment in the case of M. Dizengoff & Co v. Naomi Moskowitz Skortzky, the Israeli National Labor Court addressed the legal limitations on questions employers may ask potential employees.

Naomi Moskowitz Skortzky, a lawyer, a religious women, and a mother of two at the time, applied for a position with M. Dizengoff & Co., a company in the field of maritime insurance. Following two interviews, she was told by the CEO of the company, via e-mail, that despite having many of the qualifications necessary, the question remained if she could meet the demands of the job, having two children to raise. Even though she immediately replied, reassuring the company that she was willing and able to dedicate herself to the proposed position, despite being a mother, in a third interview she was again asked continuously about her personal life, specifically as a mother, and about her ability to meet all of the jobs requirements. In this context a number of stereotypical remarks were made, including assumptions as to her faith (the company assumed she was ultra-orthodox) and plans for having more children. Naomi was also told she would have to “work like a man”, and would not be treated differently from other employees just because she was a religious mother.

Ultimately, she was not accepted for the job, and filed an action against the company for wrongful discrimination in contravention with the Employment (Equal Opportunities) Law (1988), at the regional labor court in Haifa. The regional court ruled in her favor, determining that the company should pay her damages in the amount of 50,000 NIS. The company’s appeal, brought before the National Labor Court, was rejected.

The Employment (Equal Opportunities) Law prohibits employers from discriminating between employees and persons seeking employment, on the basis of different criteria which are listed in Article 2 of the law, including gender; sexual orientation; pregnancy; age; race and parenthood. This prohibition applies to acceptance to the job and dismissal, as well as the terms of employment; promotions; vocational training and so on. The legal protection from discrimination has further been broadened by interpreting protective laws in light of Basic Law: Human Dignity and Liberty of 1992. The Supreme Court has also noted that the principle of equality is of special importance in the field of labor law, due to the ongoing discrimination which many minority groups face in the labor market.

In light of the inherent power gap between employers and employees, and the resulting barriers employees face in proving their claims in court, two important Articles have been put in place to ensure that employees and persons seeking employment will actually benefit from the protection of the law. The first is Article 9(a) of the Employment (Equal Opportunities) Law, which states that the onus of proof as to discrimination in relation to acceptance for employment shall be upon the employer, once the prospective employee can show that he or she meets the terms and qualifications of the job, as defined by the employer. The second is Article 9(c), which could not be applied in the specific case above, as it came into force only after the events described took place. The Article states that the onus of proof shall be upon the employer if the prospective employee can show that the employer requested, directly or indirectly, information regarding criteria listed in Article 2. The Court’s decision, not to set strict evidentiary threshold demands of an employee or person seeking employment, before passing the onus of proof to the employer in accordance with Article 9, is also imperative in this respect.

It should be noted however, that in accordance with Article 2(c), when different treatment of employees or persons seeking employment is necessary due to the character or nature of the specific job, it will not be regarded as discrimination.

The Court stated that the CEO’s e-mail sent to the plaintiff between the second and third interviews was sufficient proof that she met the terms and qualifications of the job. Therefore, in accordance with Article 9(a), the onus of proof was upon the company, which failed to prove that the questions and remarks made by the CEO were not in contravention with the prohibition of discrimination on the basis of parenthood, and could not offer a convincing reason for not hiring the plaintiff. Furthermore, as intent is irrelevant in determining the illegality of an employer’s actions, which are to be examined by an objective scale, the company’s claim that the CEO’s remarks were taken out of context were deemed irrelevant. The Court added that the fact that no one had been hired for the position in the end, did not change the conclusion that the plaintiff was discriminated against on the basis of parenthood.

Though the Court acknowledged the employer’s need for information about potential employees, it stressed the obligation to balance the proprietary rights of the employer and the right to privacy of the employee. It was determined that despite Article 2(c), inquiries regarding personal information which are necessary due to the character or nature of the specific job, must be reasonable and proportionate. In this case the demands of the job did not justify the extent of the inquiry into the plaintiff’s personal life, especially as she had clarified her ability to meet the demands of the job.

In my opinion, the expansion of the protection from discrimination on the basis of parenthood is justified, and necessary. Generally, due to the traditional distribution of roles in the family, women assume more parental responsibilities than men, and are therefore perceived as less ideal workers in a labor market which currently has extremely high demands of all workers. It must be acknowledged that discrimination on the basis of parenthood is, for the most part, discrimination of women, and will continue to be so until the distribution of roles in the family changes. Of course, besides being discriminated as mothers, women also frequently suffer from gender discrimination. But in contrast with other instances of discrimination in the workplace, here the unequal treatment of women can be explained through supposedly relevant reasons, i.e. job requirements and the expectation of maximum commitment to the job.

In this regard a number of points should be kept in mind. In the specific case of Skortzky, the right of the employer to ensure that potential employees will be able to meet the demands of the job, has not been disputed, but only marginally qualified. Furthermore, while in this specific case the CEO’s behavior made the discrimination of the working mother rather apparent, in most cases such discrimination is much more concealed in nature, precisely because of the requirements of the workplace, which sometimes come together to create an environment which in itself is discriminating to working mothers. When taking this reality into account, along with the current model of the “ideal worker”, placing limitations on an employer’s ability to question potential employees about their familial responsibilities seems a reasonable, if not to say minimal, violation of their managerial prerogative – as long as the objective of allowing women equal opportunities in the labor market is agreed upon.