Two voices clashed in the Supreme Court’s upholding of a district court’s decision to allow a class action suit by women’s group Kolech against radio station Kol Barama for discrimination against women. The voices were of the women that Kolech wanted heard on the air, and the male-only voice that Kol Barama wanted heard.
As Justice Esther Hayut noted, the kol barama (“a voice in Rama” – Jeremiah 31:14) is in fact a woman’s voice – the matriarch Rachel – and Justice Daphne Barak-Erez said she also wanted Rachel’s voice heard.
The battle over the female voice, which has been absent for two years on the station’s airwaves as declared policy, led to the precedent-setting ruling that sends a message on the exclusion of women and discrimination in general.
The ruling gives an interpretation both on the law banning discrimination in products, services and entry to places of entertainment and public places, and on the law on class action suits. It sends a message on the possibility of suing private entities for discrimination, even if there is no specific injured party in whose name the suit is being brought.
In the past the High Court of Justice developed the tool of a “public petition,” relaxing the rules on the right of standing to allow petitions against the state for the impairing of rights even absent a specific injured party petitioning the court. Now the Supreme Court’s interpretation of both laws tells private entities they might be open to class action suits by organizations for exclusion and discrimination.
“Exclusion of women,” Justice Yoram Danziger stated, “also inculcates the concept that public life by its nature belongs to ‘men only,’ and as an outcome of this, also perpetuates gaps of gender and conduct that by their nature humiliate and diminish women.”
Under the law, an organization may file a class action suit for breaching the law prohibiting discrimination if that organization has been regularly and tangibly active for more than a year. (A condition that prevents a suit by transient organizations.)
Also, the organization must be able to prove that the suit is within the bounds of one of the organization’s goals, and that the person filing the suit would have a difficulty.
Justice Danziger noted a number of circumstances that could attest to such a difficulty, including a lack of financial wherewithal, gaps of knowledge or ability to understand the suit, and cultural obstacles. In this case – and this is a key point in the ruling – the court accepted, by flexible interpretation of the word “difficulty,” the argument of a cultural obstacle to the filing of the suit by individual women.
This is decisive, said Danziger, in light of ultra-Orthodox women’s reluctance to help spearhead struggles for gender equality, out of fear of harming their standing in the community. The Supreme Court therefore accepted the conclusions of the district court out of concern that if Kolech did not submit the request to approve the class action suit, the suit would not be brought at all.
Regarding the law on equality, notable is the court’s finding that it is not enough for women to be able to listen to a radio broadcast. Preventing women from broadcasting impedes their right to be treated equally; they have the right that opportunities open to men not be denied them.
Danziger rejected the argument on religious norms and the radio station, partly because it had not been proved, and in fact the station did not claim, that the religious norm required (as opposed to allowed) the exclusion of women from broadcasts. Still, Barak-Erez stressed that even a prohibition in Jewish law could not justify harm to the right to equality.
There is also great importance in the court’s ruling that damage was done not only to women who were denied speaking on the air, but also to women who were only listening to the broadcasts. It is insulting and humiliating for a woman to know she could not participate in a broadcast merely because she was a woman.
At this early stage, Danziger ruled that the station’s argument could therefore not be accepted – that no damage was done to women who “only” listened to the station. This ruling could have implications for the payout if the class action suit wins.
Danziger also rejected the argument that the differences among various types of women meant there were no “common issues” to all members of the group represented in the suit. Despite the differences between the women – those who wanted to be on the air and those who “only” listened – an equal policy of exclusion was imposed on all.
“A class action suit by an organization to assist those who belong to a community and who want to continue belonging to it is a means of giving a voice to those whose voice is not heard,” Barak-Erez added.
The ruling opens the possibility of class action suits against private entities that commit the sin of discrimination, even when an individual has difficulty filing a suit and out of a broad understanding of what constitutes wrongful discrimination and exclusion. It is thus a milestone in building legal channels to enforce legislation prohibiting discrimination.
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