Pursuant Labor Appeal 16136-05-15 M. Dizengoff & Co. (Club Representatives) Ltd. Versus Naomi Moshkovitz Skoretky

The facts in the case in reference were clear and simple. A religious mother of two children, applied for the position as a lawyer in the claims department of a company described as representing international boating insurance clubs. The company conducted three interviews with the candidate, during which the company representative asked and grilled the candidate on the challenge she would encounter in concurrently coping with a demanding job and child-raising as well as about her future family plans. The employer was quoted as having said, inter alia: "How many children do you intend to have?", "I don't see how a mother of 5 or 9 children will be able to manage"… "Ultra-religious mothers have no special privileges for having many children",  “I have to know that you can travel [long distances] without worrying about picking up your children from kindergarten".

Anyone who deals in labor relations knows that such expressions are prohibited.

In terms of denouncing such statement and transferring the onus to the company to prove that its decision was not based on prohibited considerations, the judgement was predictable.

The judgement is interesting because it deals with a more complex issue - the latent discrimination created and sustained by defining an outstanding employee as someone who is completely dedicated to work with no other commitments. This kind of discrimination may be latent at all the stages of the decision making processes relating to employees – including, in our case, hiring – in the form of job requirements that are prima facie material and objective and therefore permissible, but which result in the creation or sustenance of discrimination.

This type of discrimination has been well-described and defined by the scholars cited by the Labor Court (Prof. Guy Mundlak and  Dr. Hani Ofek-Gindler) who describe the discriminatory implications (mainly though not only towards women) of creating a "model of an outstanding employee unrestricted, independent or bearing no responsibility outside of the workplace" or "creating employment practices (such as long work hours and constant availability)… that are flawed by gender-related discrepancies ".

The legal means by which this discriminatory phenomenon can be eroded is careful and critical scrutiny of job requirements that appear to be material and objective but constitute "work practices that cultivate gender discrepancies".

The National Labor Court stated that this issue has not yet been elaborated in case law, but also set up a warning sign calling upon employers to be careful when defining job-requirements in order to avoid unlawful discrimination.