Israel High Court: Onus on Employers to Explain Lower Pay for Women

The fact a woman asks for lower wage than male colleague does not justify significant difference in pay, court rules; ruling could also affect other cases of discrimination.

Tomer Zarchin
Tomer Zarchin
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Tomer Zarchin
Tomer Zarchin

Dramatically strengthening women's workplace rights, a High Court of Justice ruling released on Thursday gave Israeli women more power to sue employers who paid them less than their male colleagues.

Three justices, headed by former Supreme Court President Dorit Beinisch, ruled that employers who pay female employees a significantly lower salary than their male counterparts will bear the burden of proof in case they are accused of discrimination.

The court's ruling is likely to also affect other cases of discrimination, either sexual, racial, age related, and other cases.

In its ruling, the High Court stated that a woman suing for discrimination will not have to prove she was deprived of pay because of her gender, but only show there is a significant difference in salaries. At this point, the burden of proof would lie with the employer who, in his part, will have to convince that there is a legitimate reason for the salary and that the employee was not discriminated.

Moreover, the High Court recognized that at times, women have less leverage than men at negotiating pay; therefore, claims that a pay was negotiated freely before hiring the worker will not be enough to justify the extensive gaps.

To this day in Israel, only few employees were sued over salary discrimination in accordance to the Law for Equal Opportunities in the Workplace. One of the reasons the law was put in place is to stop sex discrimination.

Past rulings by Israel's labor courts cast a heavy burden of proof at the plaintiff, when asked to prove they were underpaid due to the fact they were women. In such cases, the woman had to prove the existence of a widespread discriminating policy in the workplace and show the discrimination of other workers as well, what was nearly impossible. As a result, the law that was designed as a key factor in the fight against discrimination in pay was rarely used.

Last year, Orit Goren appealed the High Court along with the women's lobby, against a ruling made by the Israel's National Labor Court, which required a high burden of proof in the case where a woman sued her employee for sex discrimination.

Goren used to work as an advisor in the tools department of the home ware chain Home Center in Ramat Gan. Goren's wage at the time was NIS 17 an hour, while a male employee in the same department received a pay of NIS 26 an hour. Both employees were hired after filling out a form and after they were interviewed by the store's manager. During the interview, Goren and the male employee were asked how much they would like to earn. The monthly wage asked by the male employee was almost double than what Goren asked for.

Goren then tried to seek compensation, according to the Law for Equal Pay and the Law for Equal Opportunities in the Workplace, at the Regional Labor Court in Tel Aviv.

The Law for Equal pay deals with one of the most common expressions of discrimination between men and women at the workplace, and therefore eases the burden of proof; but on the other hand, the law limits the scope of the compensation the court can rule in favor of the plaintiff's.

The Law for Equal Opportunities in the Workplace, intended to deal with other forms of discrimination against different minority groups, requires proving a connection between the employer's intention and the decision made regarding the employee. However, the law permits compensating the employee without proving damages and may cast criminal sanctions.

While the Law for Equal Pay grants compensation for 24 months prior prosecuting, the Law for Equal Opportunities in the Workplace allows the court to grant compensation as it sees fit.

Goren won the case, after proving she received a lower pay than of a male employee working at the same position for the same employer, after Home Center failed to show the gap was justified.

In the case, the High Court faced the question if grounds to prosecute according to Equal Pay law also serve automatically as grounds to prosecute according to Equal Opportunities law.

Former High Court President Dorit Beinisch, with the consent of Justice Neal Hendel and Justice Isaac Amit, ruled that in a case of a significant difference between male and female employees, as in Goren's case, it is up to the employer to explain the rationale. If the employer is unable to convince the court, the employee will be also entitled for compensation according to Equal Opportunities law.

The court stated there is no place to require the plaintiff to present evidence and documents in order to prove discrimination and that in certain circumstances it would be enough to prove the existence of a significant difference in pay between a male and a female worker in order to shift the burden of proof over to the employer.

Moreover, Beinisch ruled that the burden of proof is linked to the gap in pay; the wider the gap, the harder the employer would have to show that gender was not a consideration.

Beinish wrote that "When there is a 35% difference in pay between male and female employees who holds the same position and the employer is unable to prove a justification for the gap, the fact that the two initially asked for a different wage is not strong enough for the employer to withstand the burden of proof according to Equal Opportunities law. In other words, while proving that fact, and in the absence of farther evidence on the employer's behalf, there is not enough to dismiss the concern that the employee's gender played a role when determining her wage."

This ruling was given in a case of sex discrimination; however the law also forbids discrimination over sexual preferences, personal status, pregnancy, fertility treatments, race, age, religion and nationality.

Goren's attorney Levy Ettinger said on Thursday that the court's ruling is important and holds historical significance and that she hopes it will be used as a precedent in future cases. Levy also said that although pay discrimination is very common, it is very hard to prove in court, and as such "the High Court's ruling will help many women to fulfill their just legal right for equal pay."

Orit Goren told Haaretz on Thursday she is "calling women not to give up, claim their rights and examine how much men and women are getting place at the workplace." Goren added that women shouldn't fear to do so. "Even if I die tomorrow, I feel that I have provided a social service of the highest level."

Women working at an Israeli factory. The percentage of women in the workforce has been steadily increasing as more older women delay retirement. Credit: Yaron Kaminsky
Orit Goren.Credit: Hadar Cohen



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