The subject of discrimination in the labor market in general, and the subject of ageism in particular, has lately become a hot topic in the public discourse. A recent ruling handed down by the Regional Labor Court in Tel-Aviv in the Bat Sheva Simchi vs. Maabarot Products Ltd. case addressed the issue of age discrimination.
The ruling was handed down in relation to a lawsuit filed by a female employee, who had worked for some 18 years in the laboratory of Kibbutz Maabarot, and who was fired at the age of 63.5 as part of organizational restructuring and a streamlining process that included employee layoffs during which, her position was eliminated. Following her termination, the employee filed a lawsuit against her employer at the Regional Labor Court on the grounds of age discrimination, claiming to violation of the Equal Employment Opportunities Law.
We should mention that due to the difficulties proving discrimination in employee lawsuits, pursuant to the Equal Employment Opportunities Law in the context of dismissals, if an employee is able to prove that there had been no grounds for his/her dismissal, the burden of proof is being shifted to the employer, who then have to prove that the employee had been dismissed due to practical considerations, and not due to any unlawful discrimination.
The Court ruled that, since there was no disagreement that the employee was a valued employee and that there were no professional reasons for her dismissal (apart from the streamlining measures), the burden of proof was imposed on the employer to prove that it had not acted out of unlawful considerations.
Later on, the court ruled that Maabarot had proven that the streamlining measures were authentic, that employee layoffs and eliminations of positions had been necessary and that the plaintiff’s position had indeed been eliminated within the scope of the organizational restructuring.
However, the Court ruled that it is not enough that the plaintiff’s age had not been a factor in the considerations against her termination during the decision-making process, it is not enough that there had been organizational justification for her dismissal and that her position had been eliminated, but rather, the employer had failed to consider aspects pertaining to the employee’s work and her capabilities, or to compare her against the rest of the employees, while the plaintiff’s age should have in fact been considered a favorable consideration to the employee’s credit, when reaching the decision to dismiss her. The lack of consideration of her age, or the indifference to her age – is what taints the decision to dismiss with discrimination.
Moreover, the Court ruled that, after the plaintiff had mentioned during the termination hearing that she is a single mother to a son with disabilities, the employer should have taken a more positive approach and sought an alternative to dismissing her, adding that the employer had not conducted an honest and thorough examination that considered the plaintiff’s personal circumstances.
When reaching its decision, the Court also considered the position of the Equal Employment Opportunities Commission, which submitted its opinion during the proceeding.
In light of this, the Court ruled that the employee’s dismissal had been tainted with discrimination and awarded compensation in favor of the employee in a total of 12 salaries in respect of the financial damages caused to her (the prescribed maximum) at the sum of approximately NIS 110,000, additional compensation of non-economic damages in respect of mental anguish in the sum of NIS 50,000 and litigation expenses and lawyer’s fees in the sum of NIS 20,000.
Although at issue is a Regional Labor Court ruling, which does not constitute a binding precedent, we are bringing this ruling to your attention, since this may be considered an innovative, original judgment, reflecting the emergence of a new trend, with similar rulings to be handed down in the future, especially since age discrimination has been making headlines with increasing frequency and heightening public awareness.