How to avoid workplace discrimination allegations

Introduction
Job advertising
Interviews and recruitment
Course of employment
Comment

Introduction

The Equal Employment Opportunity Law 1988 (the Law) prohibits an employer from discriminating against an employee or candidate based on:

• sex;
• sexual orientation;
• personal status;
• pregnancy;
• infertility treatments, such as in vitro fertilisation;
• parental status;
• age;
• race;
• religion;
• nationality;
• country of origin;
• place of residence;
• outlook;
• political affiliation or party membership; and
• service in the reserve.

In this regard, discrimination is unlawful with respect to the following matters:

• admission to work;
• working conditions;
• job promotion;
• training, including vocational training;
• dismissals or severance pay; and
• other benefits and payments given to an employee in connection with retirement.

The Law also shifts the burden of proof to employers, requiring them to prove that discrimination has not taken place if a candidate can demonstrate that they were qualified for the position and if a dismissed employee can demonstrate that there was no wrongdoing on their part.

With regard to the Law, this article set out some practical tips on how to avoid discrimination claims in Israel.

Job advertising

Employers should advertise only the job description and the required professional background. It is important to include both male and female language in the advertisement or clarify that, though the notice has been written using one grammatical gender, it applies equally to the other.

Further, employers should ensure that the language and content of the job description do not de facto marginalise any groups.

There is a difference between discrimination and lawful distinction. An example of the former would be an advertisement that essentially targets only men, whereas the latter would only target people with certain professional qualifications and, therefore, does not marginalise certain portions of society.

Interviews and recruitment

Employers should only ask questions that directly relate to the professional requirements of the position and should refrain from asking personal questions that could provide a basis for discrimination – for example, asking a candidate how long they have been married, their age or where they served in the military.

Course of employment

Employers should refrain from establishing terms of employment based on any of the characteristics above. The working conditions and promotion options of all employees should be determined based exclusively on skill and other objective professional requirements.

Men and women should be paid equally for an equivalent position. If mothers receive certain parental benefits, such as permission to leave work early to attend to their children, fathers should be provided the same rights.

Even if the job has a different title or classification, if the position is essentially the same, men and women should receive the same pay.

Further, training and workplace opportunities should also be available to all staff.

Finally, employers should regularly offer feedback to employees on their performance and indicate what needs to be improved. This should be documented in order to ensure that employees cannot claim that such feedback was arbitrary or discriminatory.

Comment

Employers should make every effort to ensure that they apply only relevant criteria in their employment relations. It is important to note that employers can be liable also for indirect or "statistical" discrimination (ie, establishing criteria that essentially work to marginalise certain groups). Accordingly, employers must be vigilant in their provision of equal opportunities to candidates and their workforce.

For further information on this topic please contact Shlomo Kaplan at Efrat Deutsch & Co by telephone (+972-3-6096960​)or email ([email protected]). The Efrat Deutsch & Co website can be accessed at www.edz-law.co.il.