Discrimination at work in Israel: what is prohibited and how to sue

Service page: Unlawful dismissal: when, what you are entitled to and how to sue.

You did not get a promotion. You were shut out of a meeting. You were asked in an interview about your family status. These are not necessarily “an unpleasant atmosphere”: they may be discrimination under the Employment (Equal Opportunities) Law.

What counts as discrimination at work under the law?

Under section 2(a), an employer may not discriminate between its employees or between job seekers because of their sex, sexual orientation, personal status (single, married, divorced or widowed, section 1), pregnancy, fertility treatment, IVF treatment, being parents, age, race, religion, nationality, country of origin, place of residence, views, political party or reserve duty (their own, their spouse’s or that of the other parent of their child), in any of the following: hiring, terms of employment, promotion at work, vocational training or professional development, dismissal or severance pay, and benefits and payments in connection with retirement from work.

Setting irrelevant conditions is also discrimination (section 2(b)), and there is no discrimination when it is required by the character or nature of the job or position (section 2(c)). Disability is not on the list in section 2: the prohibition of discrimination because of disability, including failure to make required accommodations that do not place an undue burden on the employer, is set in section 8 of the Equal Rights for Persons with Disabilities Law, 5758-1998.

Which sections of the Employment (Equal Opportunities) Law are important to know?

Direct discrimination, indirect discrimination, harassment — what is the difference?

In professional usage, a distinction is made between “direct” and “indirect” discrimination, but the Law itself does not use these terms. Direct discrimination is a decision made because of one of the grounds in section 2(a), for example not promoting an employee because of her sex, or dismissing an employee because of his age. Section 2(b) adds that setting irrelevant conditions is also discrimination, so a requirement that looks neutral may be discrimination if it is not necessary for the job and harms people with a protected characteristic. For example, a requirement to work on Friday evening in a job that does not require it may harm employees who observe the Sabbath.

Sexual harassment is prohibited under the Prevention of Sexual Harassment Law, 5758-1998 (חוק למניעת הטרדה מינית, התשנ״ח-1998), and the Employment (Equal Opportunities) Law prohibits an employer or a supervisor acting on its behalf from harming an employee when the source of the harm is sexual harassment, or a complaint or claim about it (section 7). See Sexual harassment at work: the employer’s duties and the employee’s rights.

When does the burden of proof shift to the employer?

In a claim by an employee or a job seeker for breach of section 2, the employer has to prove that it did not act in breach of the section (section 9):

• In hiring, promotion, terms of employment, training and payment of severance pay: if the employer set conditions or qualifications, and the employee or candidate proved that they met them (section 9(a)(1)).
• In dismissal: if the employee proved that there was no reason for the dismissal in their conduct or actions (section 9(a)(2)).
• When the employer asked for forbidden information: if it was proved that the employer asked, directly or indirectly, for information on a subject on which discrimination is prohibited, for example about family status or pregnancy (section 9(c)).
• In harm related to sexual harassment: if the employee proved that one of the situations in section 7(a) existed (section 9(b)).

What can you claim in the Labor Court?

The Labor Court has exclusive jurisdiction in a civil proceeding for breach of the Law (section 10(a)). It may award compensation even if no monetary damage was caused, in an amount it considers appropriate in the circumstances; in harm related to sexual harassment under section 7, it may award compensation without proof of damage up to the amount in section 10(a)(1), which is updated on 1 January each year (section 10(b)). If compensation alone would not be just, it may give a mandatory order or an injunction, and in doing so it also takes into account the effect of the order on the employment relationship and the possibility that another employee will be harmed (section 10(a)(2)).

The claim may be filed by the employee, by the representative workers’ organization (trade union) at the workplace, or by an organization that deals with the rights of people whom it is forbidden to discriminate against, with the employee’s consent (section 12). In a proceeding over harm related to sexual harassment (section 7(a)) or over discrimination because of sexual orientation, the court may hear the case behind closed doors, and it grants the plaintiff’s request for this unless it decides otherwise for special reasons that are recorded (section 10A). See also: Unlawful dismissal.

How do you file a complaint about discrimination — and where?

There are three routes:

• An internal request in writing to the employer or to human resources. The law does not require it, but it records what was reported and when.
• A complaint to the Equal Employment Opportunities Commission (נציבות שוויון הזדמנויות בעבודה): any person may file a written complaint with the regional commissioner about a breach of the employment equality legislation (section 18L). The commissioner may, among other things, dismiss outright a complaint when more than one year has passed since the cause of action arose, refer it to mediation with the consent of the parties, investigate it, file a civil claim on behalf of the complainant or on behalf of the Commission, or apply for a general order (section 18M(b)). The commissioner will not handle a complaint whose cause of action is being heard by a court or tribunal (section 18M(a)(2)).
• A claim in the Regional Labor Court (section 10(a)), within five years from the day the cause of action arose, and by a job seeker within three years (section 14). For which Regional Labor Court to file in, see In which Labor Court do you file a claim.

What to prepare before a complaint or a claim. Each item is linked to the section in which it is used:

• The date of the event, that is, the day the cause of action arose, for example the day of the decision or the day of the dismissal. The five years for a claim, or three years for a job seeker (section 14), are counted from it, and a complaint to the Commission filed more than one year after it may be dismissed outright (section 18M(b)(1)).
• The job advertisement and the job requirements, and documents that show that you met the conditions or qualifications the employer set (section 9(a)(1)).
• Evaluations, feedback and letters of appraisal: in a dismissal, they show that there was no reason for the dismissal in your conduct or actions (section 9(a)(2)).
• Questions you were asked in an interview, in a questionnaire or in writing about family status, pregnancy, age or another protected subject (section 9(c)).
• Earlier complaints and their dates, if the harm came after a complaint or a claim (section 6(a)).
• The number of employees the employer has: the Law, except for section 7, does not apply to someone who employs fewer than six employees (section 21(c)). Even with a small employer, protections that do not depend on the number of employees apply, for example the prohibition on dismissing a pregnant employee without a permit, if she has worked for the employer for at least six months (section 9(a) of the Women’s Employment Law, 5714-1954 (חוק עבודת נשים, התשי״ד-1954)).

Retaliatory dismissal after a complaint: how to prove it and how to protect yourself

The Employment (Equal Opportunities) Law prohibits an employer from harming an employee — by dismissal, in the terms of employment and in the other matters listed in section 2 — because of a complaint or claim under the Law, or because of help given to another employee in connection with such a complaint (section 6(a)). The Law gives the employer a defense when the action was taken because of a false complaint filed maliciously and knowing that it was false (section 6(b)). A civil claim for breach of the Law must be filed within five years from the day the cause of action arose, and a claim by a job seeker within three years (section 14).

Frequently asked questions

Does the law apply to every employer?

No. The Employment (Equal Opportunities) Law, except for section 7 (harm related to sexual harassment), does not apply to someone who employs fewer than six employees, and it does not apply to an employee who is employed other than for the purposes of the employer’s business or occupation (section 21(b)–(c)). Preferring a family member of the employer is not considered discrimination (section 21(a)). The State as an employer is treated like any other employer (section 17).

May an employer ask about family status or pregnancy in a job interview?

If it is proved that the employer asked an employee or a candidate, directly or indirectly, for information on a subject on which discrimination is prohibited, the burden shifts to the employer to prove that it did not discriminate (section 9(c) of the Employment (Equal Opportunities) Law). Personal status and pregnancy are among the grounds in section 2(a). Asking for the military profile is forbidden, except for the exceptions in section 2A(c) (section 2A).

Can you complain to the Commission and also sue in the Labor Court?

The regional commissioner will not handle, or continue to handle, a complaint whose cause of action is being heard by a court or tribunal (section 18M(a)(2) of the Employment (Equal Opportunities) Law). So there is no parallel handling by the Commission of the same cause of action after a claim has been filed. The commissioner may file a civil claim themselves, on behalf of the complainant or on behalf of the Commission (section 18M(b)(5)).

How long do you have to sue for discrimination at work?

Within five years from the day the cause of action arose, and a job seeker within three years (section 14 of the Employment (Equal Opportunities) Law). A complaint to the Equal Employment Opportunities Commission may be dismissed outright if more than one year has passed since the cause of action arose (section 18M(b)(1)).

I was dismissed after I complained about discrimination. What does the law say?

An employer may not harm an employee, including by dismissal, because of a complaint or claim under the Law, or because they helped another employee in connection with such a complaint (section 6(a) of the Employment (Equal Opportunities) Law). In such a claim, the employer has a defense if it acted because of a false complaint made maliciously and knowing that it was false (section 6(b)). The Labor Court may award compensation, and if compensation alone would not be just, also a mandatory order or an injunction (section 10(a)).