Orit Goren
Orit Goren, whose lawsuit against Home Center ended with the High Court of Justice shifting burden of proof to employers in equal pay lawsuits. 'I feel I have defeated history,' she says. Photo by Tomer Appelbaum
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"I thought," she said, "that if I asked for more pay they wouldn't hire me. I kept thinking about what one of my previous employers said to me in the past: 'I am employing you because I can pay you 60 percent of the salary I pay a man."

Orit Goren hopes that no woman will hear this sentence ever again. Earlier this month, the personal battle for equal pay that she began against Home Center 14 years ago finally ended with a groundbreaking ruling by the High Court of Justice that may open the door for many other women who want to stand up for their right to be treated equally. The bench, headed by former Supreme Court President Dorit Beinisch, transferred the burden of proof for the reason behind salary gaps from the women themselves to the employers.

Goren, who is now 47, lives in the center of the country with her female partner and their two children. When she was hired for her job in the tools department at Home Center in Ramat Gan, she came with an impressive resume of working with her hands. She was asked on her job application about her salary requirements and she wrote NIS 3,500 a month, which was the salary she received. "I really wanted to get the job," she said Monday, "and I was prepared to ask for less money, even though it was clear I deserved more."

However, once she began working she discovered in a causal conversation with one of her colleagues that he was being paid NIS 5,000 a month for exactly the same work, after having asked for NIS 6,000 during the hiring process. While her hourly wage was NIS 17, her male colleague's was NIS 26.

"This angered me," she said Monday. "By what right does he earn more? He was less professional than I was, lacking in confidence, and when people asked him things he would come to consult me and get my help. In what way was I less qualified than he was?"

Another screw on the shelf

Goren wrote a letter to the branch manager and asked to be paid as much as her colleague was earning. When she received no answer, she wrote another letter in which she noted that to the best of her knowledge there were other employees in the department earning a higher salary than hers, asked for information about the pay level of the workers in the department and announced her resignation as of the end of that month, after four months of work. "I felt they weren't paying attention to me, that they saw me as another screw on the tool shelf and I preferred not to stay there," she says.

After she resigned, Goren filed a damages suit against Home Center at the district labor court in Tel Aviv for violation of two laws. The first one, the Equal Pay Law, prohibited a wage gap on the basis of gender, though it was up to the plaintiff to prove that the gap was a result of discrimination. The second, the Equal Opportunity Law, required proving a connection between the employer's intention and any decision made regarding an employee (not necessarily related to salary ). That law does not set a ceiling for compensation and can result in criminal sanctions against a discriminating employer.

Goren won her suit under the Equal Pay Law after Home Center was unable to show justification for the low pay she received relative to the salary her male colleague received for doing the same job. The court ordered the company to pay her damages in the sum of NIS 7,000 under the Equal Pay Law, and a similar sum under the Equal Opportunity Law.

Home Center appealed to the National Labor Court, attacking its obligation to pay under both laws. Goren, together with the lobby group Israel Women's Network, filed a counter-appeal attacking what they claimed was the low amount of the damages the court had ordered under the Equal Opportunity Law. While Goren's appeal was rejected, Home Center's appeal was accepted; the do-it-yourself chain was told it did not have to pay Goren damages under the Equal Opportunity Law. Three years later Goren and IWN appealed that decision to the High Court of Justice, and asked it to determine whether the fact that a court ruled there were grounds for the suit on the basis of the Equal Pay Law automatically meant there were also grounds for a suit under the Equal Opportunity Law.

In their ruling, Beinisch and Supreme Court Justices Isaac Amit and Neal Hendel wrote that if there is a large gap in pay between a female and a male employee, as there was in Goren's case, the burden of explaining its reason falls to the employer, and if the employer cannot give a reason for the wage differential, the female employee is entitled to compensation under the Equal Opportunity Law, without proof of damages.

Goren, incidentally, was not affected by the ruling. Since three years had passed between the ruling handed down in her case and her appeal to the High Court of Justice, she is not entitled to additional compensation. From her perspective, however, this has not detracted from the importance of the appeal.

"This struggle was matter of principle. It was important to me to send the message to other women not to give up," she said. "Many women think they do not have bargaining power. They think their employer is doing them a favor by hiring them because they get pregnant and take maternity leave and have to care for children. I have never felt anyone needed to do me a favor in order to employ me. I believed in my own value and I have always done non-conventional things, such as carpentry, because I knew I was able. People who are facing systems and conventions often do not have enough faith in themselves. In that sense, I feel I have defeated history."

Since leaving Home Center, Goren has developed a career in the field of carpentry and has appeared on a Channel 2 television program about renovating apartments. She says she received support and encouragement all along the way. "No woman has ever said to me, 'What do you need this for?' In fact I heard reactions like, 'We would do that too.'"

According to Prof. Hadara Bar-Mor, an expert in labor law at Netanya Academic College's School of Law, the number of women who sue for their rights is minuscule. "Women are deterred from suing over pay discrimination," she says, "because they're afraid they'll be stigmatized as 'troublemakers' who stand up for their rights too much, and because of an evidentiary difficulty in proving pay gaps, and because of lack of resources."

According to data collected by IWN, the wage gaps between women and men in Israel have become a chronic problem. The Adva Center's Social Report for 2011 showed that since 2000 there has been no change in the gender wage gaps and that women's hourly pay continues to be 84 percent of that earned by their male colleagues.

In a survey conducted by the Geocartography Knowledge Group in December 2010 for Shatil, 83 percent of the female respondents believed the state should intervene in the market in order to advance equal pay for women and men. However, according to the survey, it turns out the government itself pays its female workers, who make up 65 percent of its workforce, less than their male counterparts. That's despite what is supposed to be strict supervision against such discrimination by state authorities and workers' organizations. Women account for 47 percent of the workforce in the private sector, with that percentage decreasing at higher levels. In fact, women account for only 34 percent of executives in the private sector, and that figure drops to just 18 percent at the highest levels of management.

According to IWN CEO Dr. Galit Deshe, even though the Equal Pay Law was passed in 1964 and amended in 1996, very few women have thus far taken advantage of it. "Women don't know they have the right to equal pay," she says, "and many women do not imagine that in the Israel of 2012 they are earning less than men who work at the desk next to theirs at a bank, for example, or at a high tech company, or at a shop or factory." She notes that women who do suspect there is pay discrimination at their place of employment face huge difficulties proving it because of a policy of pay confidentiality.

In Deshe's opinion, "The state has to take responsibility for spreading the information, and must come out with a purposeful campaign, as well as demand that employers reveal pay information. We hope the court ruling will bring into the limelight this open secret called pay discrimination."