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אורית גורן נ' הום סנטר ( עשה זאת בעצמך ) בע"מ

פסק הדין בבג"ץ 1758/11 ניתן ביום 16 במאי 2012.

ההכרעה, במילותיו של בית המשפט.

The right to equal pay arises when the employees perform the same, or substantially the same, task or one of equal value. The law establishes a legal presumption of gender discrimination when there is a difference in salary between a male employee and a female employee. It is important to note that despite the amount of time that has passed since the law was enacted, gender discrimination with regards to wages is, unfortunately, still in practice. A 2010 Knesset survey, released by that National Center for Statistics on September 7, 2011 stated that women earn on average 66% of what men earn a month and 84% of what men earn per hour. See

פסק הדין ניתן ביום 16 במאי 2012.

בית המשפט: בית המשפט העליון
מקרה: בג"ץ 1758/11
נפתח: 2011
ניתן: 16 במאי 2012
משך: 36 עמודים

כך מצטטים את פסק הדין.

בג"ץ 1758/11 אורית גורן נ' הום סנטר ( עשה זאת בעצמך ) בע"מ (16.5.2012)

הנוסח המלא של פסק הדין.

פסק-דין

IN THE

SUPREME COURT OF THE STATE OF ISRAEL

SITTING AS THE

HIGH COURT OF JUSTICE

HCJ 1758/11

Before: Hon. President D. Beinisch (Ret.)

Hon. Justice N. Hendel

Hon. Justice I. Amit

Petitioners:

1.Orit Goren,

2.The Women’s Lobby of Israel

Respondents:

1.Home Center (Do It Yourself) Ltd.,

2.The National Labor Court in Jerusalem

Argued: 28 Elul 5771 (27 September 2011)

Decided: 25 Iyyar 5772 (17 May 2012)

The Supreme Court sitting as the High Court of Justice

[September 27, 2011]

Before President D. Beinisch (Ret.), Justice N. Hendel and Justice I. Amit

Facts: The first Petitioner had received a lower salary than a male employee for the same work. The Petitioner won a lawsuit in the Labor Court for the District of Tel Aviv, on the basis of the 1996 Equal Pay Act and the 1988 Equal Job Opportunities Act, as the employer failed to show any justification for the discrepancy. In the appeal the majority opinion of the National Labor Court determined that a successful claim under the Equal Pay Act does not automatically give rise to a claim under the Equal Job Opportunities Act, which, unlike the former, permits the award of compensation without proving actual damage. The Petitioners filed a petition to the High Court of Justice.

Held: The Court noted that the High Court of Justice will only intervene in a decision of the National Labor Court when the decision contains a clear legal error the correction of which justice demands. It decided to adjudicate the case in light of its importance and implications of the questions arising from it. President (Ret.) Beinisch explained that both the Equal Pay Act and the Equal Job Opportunities Act were enacted for the purpose of advancing equality in the workplace by prohibiting an employer from discriminating on the basis of irrelevant consideration. However, each statute is meant to safeguard against different forms of discrimination in the workplace; each has different methods of testing whether discrimination has occurred; and each provides for different penalties for respective offenders. The Court determined that in light of the differences between the two statutes, a successful claim under the Equal Pay Act will not automatically trigger a claim under the Equal Job Opportunities Act. Nevertheless, it determined that under certain circumstances, it may be sufficient for the plaintiff to prove that there is a significant wage gap between her and a fellow male employee in order to shift the burden of proof to the employer under the Equal Job Opportunities Act. The employer must then prove that there is no causal relationship between the wage gap and the gender of the employee that the difference in salary is not “because of” the plaintiff’s gender. President (Ret.) Beinisch acknowledged that if an employer proves that his workers' salaries are a result of negotiations between the parties and that he treats both male and female employees alike with regard to salary, this would meet the burden of proof under the Equal Job Opportunities Act, so long as it can be demonstrated that company policy regarding wages is uninfluenced by gender or any of the other classes protected by Section 2(a). However, the more significant the difference in pay between a male and a female employee, the more significant the burden of proof upon the employer to show that the employee’s gender was not a consideration in determining her salary. In the case at hand, the Court ruled in favor of the Petitioner and overturned the decision of the National Labor Court. It did not award her damages under the Equal Job Opportunities Act mainly due to her delay in filing her petition.

On behalf of Petitioner 1: Adv. Orna Lin; Adv. Odeliah Ettinger; Adv. Barak Calev

On behalf of Petitioner 2: Adv. Yaniv Wiseman

On behalf of the Respondent 1: Adv. Dror Gal; Adv. Carmit Levi Zamir; Adv. Sima Golin

On behalf of Representatives for Equal Opportunity in the Workplace:

Adv. Tziona Kenig-Yair; Adv. Janet Shalom

JUDGMENT

President Dorit Beinisch (Ret.)

Petitioner 1 (Orit Goren; henceforth, “Petitioner”) won a lawsuit against Respondent 1 (Home Center Ltd.; henceforth, “Respondent”) under the 1996 Equal Pay Act, upon the determination that the salary she received from the Respondent was lower than that of a male employee who performed the same task, and given that the Respondent could not justify the discrepancy. The issue decided by the National Labor Court, among others, in this case was whether proof of discrimination under the Equal Pay Act automatically gives rise to a cause of action under the 1988 Equal Job Opportunities Act. The main issue arising from this question is the fact that under the Equal Job Opportunities Act, unlike the Equal Opportunities Act, it is possible to award damages without proving actual damage. A majority opinion in the National Labor Court determined that a successful claim under the Equal Pay Act does not automatically give rise to claim under the Equal Job Opportunities Act; hence, this petition.

Facts

1.Petitioner worked as a consultant in the tool department of the Respondent’s store at the Ayalon Mall in Ramat Gan from August 25, 1997 until December 27, 1997, where she was paid NIS 17/hr. Along with the Petitioner in the tool department worked Steven Mor, a male, who earned a salary of NIS 5000/month (which amounts to approximately NIS 26/hr.). The two were hired after filling out a questionnaire and an interview by the department head. When asked before their hiring how much they wanted to be paid, the Petitioner requested NIS 3500/month while Mor requested NIS 6000/month. When the Petitioner discovered that Mor received a higher salary than her, she wrote a letter, dated November 16, 1997, to the department head asking for a raise to the effect of either NIS 5000/month or NIS 26/hr. Her letter went unanswered. On December 14, 1997, the Petitioner wrote another letter to her department head pointing out that to the best of her knowledge other employees in her department earn more money than she does. She requested information regarding the salaries of the other employees in her department and provided notice of her resignation effective December 27, 1997.

2.After her resignation, Petitioner filed a lawsuit against the Respondent in the Labor Court for the District of Tel Aviv, claiming the difference in salary between her and the other employees on the basis of both the Equal Pay Act and the Equal Job Opportunities Act. On April 1, 2004, a panel consisting of Judge M. Nachtomi and Public Representatives T. Braffman and Y. Eldar found in her favor. The panel determined that both the Petitioner and Steven Mor worked as consultants in the tool department in the Respondent’s Ramat Gan branch, and that the Respondent did not sufficiently establish either a distinction between the job done by the Petitioner and the job done by Mor; or that Mor had any superior abilities to those of the Petitioner; or that the reason Mor received a higher salary was because he was in line for a managerial position. However, the court determined that the Respondent sufficiently proved that, generally speaking, its male employees do not receive a higher salary than its female employees.

Given the circumstances of the case, the court also had to decide what reference group to use in determining whether the Petitioner was discriminated against.. Should the court compare her salary to all those working in the Respondent’s tool departments across the country or should it compare it to the salaries of those working in the Ramat Gan branch? Regarding this question the court looked to Section 2 of the Equal Pay Act which says that any discrepancy in wage should be calculated against employees employed “by the same employer” and “at the same place of employment.” In light of the fact that the Respondent’s policy in this case is to leave all salary decisions to the discretion of the manager of each branch, the labor court determined that the Petitioner’s loss due to discrimination should be calculated against the salaries of her coworkers at the Ramat Gan branch. Since the Respondent did not provide information regarding the wages of the other workers in the tool department of the Ramat Gan branch, and the court determined that the services provided by the Petitioner were equal to those Mor was hired to do, the court concluded that the Petitioner had sufficiently proven that the disparity in salary between herself and Mor constituted discrimination. The court noted that the fact that the salary offered to the Petitioner was a result of negotiation between her and the department head during which she requested a lower salary than that which Mor requested does not justify the disparity in their salaries. Therefore, the district labor court determined that the Petitioner successfully established a claim under the Equal Pay Act and awarded her NIS 6,944, which is the difference in salary earned between the Petitioner and Mor.

Additionally, the district labor court determined that once it has been found that the Respondent violated the Equal Pay Act, the Petitioner has a legitimate claim under the Equal Job Opportunities Act. The court held that since the Petitioner’s salary was set as a result of her salary request and not at the behest of the Respondent, the Petitioner could not be awarded the full amount under the Equal Job Opportunities Act. Therefore, the court set the amount of compensation owed to the Petitioner under the Equal Job Opportunities Act at NIS 6,944, equal to the compensation awarded to her under the Equal Pay Act.

3.The Respondent appealed the decision to the National Labor Court, and the Petitioner filed a counter-appeal. The Respondent claimed that the Petitioner should not be entitled to compensation under either law, while the Petitioner claimed that she should be entitled to higher damages than those awarded to her under the Equal Job Opportunities Act. In a November 20, 2007 decision, the National Labor Court decided to affirm the lower court’s ruling awarding the Petitioner compensation under the Equal Pay Act, but, in a split decision, held for the Respondent with regards to the Equal Job Opportunities Act and reversed the lower court’s decision to award damages under the Equal Job Opportunities Act.

The Decision of the National Labor Court

4.Judge V. Wirth-Livnah delivered the decision of the National Labor Court. In the decision, Judge Wirth-Livnah interpreted the relevant provisions of both the Equal Job Opportunities Act and the Equal Pay Act and compared the claims available under both statutes. Regarding the Equal Pay Act, Judge Wirth-Livnah agreed with the ruling of the district court according to which the Petitioner’s loss should be calculated against the salaries of those working in the tool department at the branch at which she worked in Ramat Gan, because every branch of the Respondent acts independently, as the manager of each branch determines each employee's salary. Judge Wirth-Livnah added that in this case the information provided by the Petitioner regarding the disparity in salary between her and Mor and the fact that they performed the same task sufficiently fulfilled the Petitioner’s burden of proof in establishing her case. With regards to the exceptions to the Equal Pay Act listed in Section 6 of the statute, Judge Wirth-Livnah determined that it is the responsibility of the Respondent to prove that the case falls into one of the exceptions, and in this case, the Respondent did not meet its burden. Judge Wirth-Livnah pointed out that there may be exceptions to the right to equal pay not listed in the Act, and noted that the right to equal pay is not absolute. Therefore, the right to equal pay must be balanced with the right of employers to privately contract and negotiate a salary with its employees. Thus, Judge Wirth-Livnah determined that if an employer can prove that any discrepancy (so long as it is not extreme) between the salaries of its male and female employees who perform the same task is due solely to the individual salary negotiation the employer has conducted with each individual employee, the right to contract will outweigh the right to equal pay. The employer, however, is required to ensure that the differences in his employees’ salary are reasonable. Additionally, Judge Wirth-Livnah pointed out that if the court were to take away an employer’s right to contract, there could be a negative effect on women, as it could cause employers to avoid hiring women altogether as a means of avoiding the problem of wage gaps.

In this case, Judge Wirth-Livnah determined that because the difference between the Petitioner’s salary and that of Mor stood at 35% and because the Respondent failed to provide information regarding the salaries of other employees working at the branch, this is not a situation in which the right to contract trumps the right to equal pay under the Equal Pay Act. Therefore, Judge Wirth-Livnah concluded that the Petitioner sufficiently established a claim under the Equal Pay Act, and upheld the lower court’s decision in this regard.

While the other members of the panel joined Judge Wirth-Livnah in her decision, it is important to note that Judge S. Tzur (and employer’s Rep. D. Blumberg who joined his opinion) and President S. Adler (with whom employer’s Rep. Y. Shilon joined) did not agree with Judge Wirth-Livnah regarding the circumstances in which the right to contract trumps the right to equal pay. President Adler held that an employer acting in good faith cannot take advantage of the weakness or unfamiliarity of female employees of the appropriate wage rates for the job she is seeking when requesting a lower salary than what a male applicant is requesting. Finally, President Adler noted that the difference in bargaining power between the genders cannot serve as a valid justification for a difference in salary.

5.The main disagreement between the judges in the National Labor Court, however, surrounds the question of the relationship between a claim based on the Equal Pay Act and a claim based on the Equal Job Opportunities Act. Judge Wirth-Livnah, together with Judge Tzur and Employee's Rep. D. Blumberg, held that an award under the Equal Pay Act does not automatically trigger a claim for damages under the Equal Job Opportunities Act. In her opinion, Judge Wirth-Livnah focused on the difference between the two statutes. Under the Equal Pay Act, the plaintiff can be awarded damages for the difference in salary up to the 24 months prior to filing a complaint, whereas under the Equal Job Opportunities Act, a plaintiff can be awarded damages as the court sees fit without the need to establish any monetary loss. Judge Wirth-Livnah noted that compensation under the Equal Job Opportunities Act are aimed at educating employers and deterring discrimination. Therefore, judges have wide latitude in determining what the compensation should be. Furthermore, Judge Wirth-Livnah added that the two Acts are different with regards to the evidence a plaintiff must provide in order to establish a prima facie case of discrimination thus shifting the burden of proof over to the defendant. Under the Equal Pay Act, all that is required of a plaintiff filing suit is to provide the court with information regarding a difference in salary between her and a male employee who performs the same task and in the same workplace; whereas a plaintiff filing suit under the Equal Job Opportunities Act must present actual evidence of discrimination, despite the fact that the Equal Job Opportunities Act does not require the plaintiff to prove that the discrimination was intentional. Judge Wirth-Livnah adds that there are various pieces of legislation intended to protect equality in the workplace, among them the Equal Pay Act, the Equal Job Opportunities Act, the 1954 Women in the Workplace Act and the 1998 Law to Prevent Sexual Harassment. The fact that there are different statutes to this effect calls upon us to look upon them as complimentary of one another as opposed to redundant in which fulfillment of the elements of one claim will automatically fulfill the elements of another. Judge Wirth-Livnah noted that under Section 2 of the Equal Job Opportunities Act, the plaintiff-employee must prove actual discrimination. The importance of this requirement is that any lawsuit filed on the basis of the Equal Job Opportunities Act requires the plaintiff to first and foremost establish that there was gender discrimination, because only proof of discrimination can result in punitive damages.

Judge Wirth-Livnah added that the differences in the evidentiary requirements between the Equal Pay Act and the Equal Job Opportunities Act necessary to establish a cause of action is whether the facts of the case are branded as “discriminatory” and entail punitive damages, which is the case in a Equal Job Opportunities Act lawsuit, but not in a claim filed under the Equal Pay Act. Therefore, Judge Wirth-Livnah concluded that successfully establishing a claim under the Equal Pay Act does not necessarily mean the plaintiff will be successful in a claim under the Equal Job Opportunities Act. Hence, in this case, Judge Wirth-Livnah found that the fact that the lower court concluded that the Respondent’s business did not have a discriminatory policy in place meant that it was not deserving of the punitive measures consistent with a claim under the Equal Job Opportunities Act and that the compensation awarded to the plaintiff under the Equal Pay Act sufficed.

6.President Adler, with whom Employees Rep. Y. Shilon joins, disagreed with Judge Wirth-Livnah and held that a successful claim under the Equal Pay Act gives rise to a claim under the Equal Job Opportunities Act. President Adler ruled that an unequal salary demonstrates discrimination in the workplace which violates Section 2 of the Equal Job Opportunities Act. President Adler pointed out that under both statutes the plaintiff must provide evidence of a difference in salary and unequal treatment between herself and a male employee, thereby shifting the burden of proof to the employer-defendant to prove that he acted legally. Accordingly, an employer who successfully shows that the difference in salary is justified under Section 6(a) of the Equal Pay Act has sufficiently proven that the difference in wage is not a result of the plaintiff’s gender as required by the Equal Job Opportunities Act. Therefore, President Adler held that so long as the employer cannot show that the difference in salary is justified under Section 6(a) of the Equal Pay Act, the only conclusion is that the difference in treatment is a result of the employee’s gender. Furthermore, President Adler added that neither Acts requires the plaintiff to prove that the discrimination was intentional and that every case is to be decided objectively. Additionally, the situations in which a plaintiff can file a claim under the Equal Job Opportunities Act are no less than those available under the Equal Pay Act, and the defenses available to an employer under the Equal Job Opportunities Act are no more than those available under the Equal Pay Act. Thus, concludes President Adler, the two statutes complement one another when they are interpreted in a consistent manner.

With regards to this case, according to President Adler’s approach, the fact that the lower court agreed that the Respondent did not discriminate as a matter of policy is not a good defense against the claims stemming from the two statutes. Paying an employee less than what others, performing the same task, are earning, even if it is against company policy, is a violation of both these laws. Finally, according to President Adler, the question of whether a company policy results in discrimination is a factor in determining the amount of damages to award under the Equal Job Opportunities Act.

The Parties’ Claims

7.The main claims of the Petitioner and of petitioner no.2, The Women's Lobby of Israel (henceforth, “the Petitioners”) touch upon the nature of the relationship between the cause of action under the Equal Pay Act and the cause of action under the Equal Job Opportunities Act given the circumstances of this case and the evidentiary threshold necessary to prove a claim under the Equal Job Opportunities Act. According to the Petitioners, the fact that the Petitioner’s salary was 35% less than that of Mr. Mor is reflective of the deep rooted problem of wage discrimination in the Israeli economy and is sufficient to meet the burden of proof necessary to establish a successful claim not only under the Equal Pay Act, but also under the Equal Job Opportunities Act. The Petitioners further argue that the court cannot deny the Petitioner's compensation under Section 10 of the Equal Job Opportunities Act solely because she could not prove widespread discrimination. According to the Petitioners, the majority ruling in the National Labor Court requiring that a claim of discrimination under the Equal Job Opportunities Act to be "because of" the employee’s gender, is, for all intents and purposes, the same as requiring proof that the employer "intended" to discriminate. Such a burden is, according to the Petitioners, unrealistic. The Petitioners point to the decision of the district labor court (upon which the National Labor Court relied) that there was no company-wide policy resulting in discrimination and argue that the decision of the National Labor Court essentially requires proof of widespread discrimination in the workplace as a condition for relief under the Equal Job Opportunities Act. Additionally, the Petitioners argue that when a court determines that there is a discriminatory effect that cannot be explained by relevant considerations, such as the case at hand, it must not be required to rule on whether the source of the result is a deliberate policy of discrimination. The Petitioners also argue that the National Labor Court’s interpretation of the Equal Job Opportunities Act does not fit with its plain language. The statute itself contains no language suggesting that courts should deviate from the established test for determining discrimination, namely, determining whether there is disparate treatment between two entities that are otherwise equal. The Petitioners further allege that the interpretation of the National Labor Court goes against the purpose of the Equal Job Opportunities Act, which is to serve as a deterrent to discrimination. They argue that in Section 10 of the Equal Job Opportunities Act the legislature permitted punitive damages to be awarded without any proof of damages as a deterrent measure. However, they claim, the National Labor Court’s decision to refrain from imposing such a penalty by setting a high burden of proof for the plaintiff effectively makes such a claim worthless and creates an incentive for the employer to act with indifference towards the Equal Job Opportunities Act. The Petitioners add that parties may not waive the provisions of either the Equal Pay Act or the Equal Job Opportunities Act; therefore, an employee's agreement to take a lower wage should not be looked at as consent to unequal treatment on the part of the employer.

Finally, the Petitioners argue that under the circumstances, this Court should not reject the petition because it was filed three years after the decision in the National Labor Court. The Petitioners claim that the public interest in eliminating discrimination against women and blocking their path up the corporate ladder and the need to permit the use of the Equal Job Opportunities Act to advance this objective outweigh the interest of the Respondent’s reliance on the decision of the National Labor Court. The Petitioners conclude that the Petitioner never gave up her right to compensation and the reason for her delay in filing is due to her lack of financial resources.

8.The Respondent argues that the petition should be dismissed outright due to the long period of time it has taken the Petitioner to file, and thus, the Court cannot accept her factual or legal arguments because of the prolonged time lapse. The Respondent also claims that this case does not justify review by this Court, sitting as the High Court of Justice, based on the rules set forth by Court precedence. The Respondent argues that the claims of the Petitioners regarding the proper interpretation of the relationship between the Equal Pay Act and the Equal Job Opportunities Act with regards to the plaintiff’s burden of proof does not justify this Court’s intervention in a decision of the National Labor Court. Furthermore, the Respondent argues that the effect of reducing the burden of proof required under the Equal Job Opportunities Act to that of the Equal Pay Act, as the Petitioners request, is contrary to the legislative intent. The Respondent points to the fact that the 1996 amendment to the Equal Pay Act expanding the grounds on which a plaintiff may file a claim entered into force eight years after the Equal Job Opportunities Act was enacted. Therefore, had the legislature intended for the burden of proof required by the Equal Pay Act to be sufficient for a successful claim under the Equal Job Opportunities Act, it would have explicitly said so in the amendment, but it did not. The Respondent adds that the two laws complement one another in that while the focus of the Equal Pay Act is the difference in salary between a male and female employee, the Equal Job Opportunities Act focuses on the cause of the difference in salary.

Additionally, the Respondent argues that the Petitioners' argument suggesting that the majority opinion in the National Labor Court decision requires a plaintiff to prove intent to have a successful claim under the Equal Job Opportunities Act should be rejected. The Respondent argues that the Petitioners confuse between the lack of a requirement to prove intent and the requirement to show a causal connection to prove the existence of discrimination. The Respondent adds that the difference in salary between the Petitioner and Mor was a result of, among other things, the salary requests they made to the department head during the course of negotiating their salary. The Respondent adds that granting a specific salary request is not one of the things forbidden to an employer under the Equal Job Opportunities Act, as opposed to the Equal Pay Act which grants am employee the right to equal pay to other employees performing the same task or a job of the same value, even if the difference in pay does not stem from the gender of the employee.

Another point raised by the Respondent concerns the fact that the discrimination prohibited by the Equal Job Opportunities Act is discrimination based on the employee’s membership in a specific protected class (for example, religion, gender, race, etc.). Thus, claims the Respondent, in order for an employee to prove discrimination on the basis of his/her membership in a protected class, (s)he must establish that the employer in question has a policy which results in discrimination against that particular class. In this case, the Respondent claims that it has sufficiently proven that it does not discriminate against its female employees, and even in the same tool department in which the Petitioner and Mor both worked, there were male employees who earned less than Mor. Under these circumstances, the Respondent argues that the earnings difference between the Petitioner and Mor is not enough for a successful claim under the Equal Job Opportunities Act, even though she was granted damages for her claim by the National Labor Court under the Equal Pay Act.

9.In addition to the claims of the parties in this case, we also received an amicus brief filed by the Equal Opportunities Commission of the Ministry of Industry, Trade and Labor. In light of the commission’s interest in this case and its role in the statute involved, we decided to allow its intervention into the proceedings. The commission claims that significant wage gaps between men and women are common in both the public and private sectors. It argues that both the Equal Pay Act and the Equal Job Opportunities Act should be interpreted in light of the existing realities in which significant wage gaps are a commonplace in society. It further argues that the difficulty in proving the existence of discrimination has led us to the point where the Equal Pay Act test is simply a showing of a wage gap between employees and does not require any showing of intent, and that under the Equal Job Opportunities Act, in certain circumstances, the burden of proof is shifted to the employer. The commission claims that the majority opinion in the National Labor Court has serious implications as to the implementation of the Equal Job Opportunities Act, which go against the prevailing theory as to the ability of the plaintiff to prove discrimination under the Equal Job Opportunities Act.

Given the circumstances, the commission argues, the Court should adopt a middle ground between the majority opinion in the National Labor Court and the dissent. It argues that when an employee successfully establishes a difference in salary between her and another employee, despite the implementation of an equal employment policy, the burden of proof would then shift to the employer to prove that there was no discrimination on the basis of gender. If the employer cannot withstand this burden, it would be assumed that it is a case of gender discrimination.

Analysis

10.Before discussing the main question presented by this case regarding the relationship between the Equal Pay Act and the Equal Job Opportunities Act, we will first address the issue raised by the Respondent with regards to the dismissal of the petition. The two issues presented by the Respondent’s claim are (1) whether the amount of time that has elapsed between the date of the decision of the National Labor Court and the filing of this petition has any bearing on whether this Court may hear this case; and (2) whether this Court, in its capacity as the High Court of Justice, can review a decision by the National Labor Court.

Regarding the delay in filing, it seems hard to dispute the fact that filing a petition more than three years after the judgment of the National Labor Court poses a significant hurdle to the Petitioners. Such a delay can be grounds for immediate dismissal when filed with the High Court of Justice. When determining whether such a delay is grounds for dismissal we analyze the delay in three ways: (1) subjectively; (2) objectively; and (3) the effect upon the rule of law if such a claim is allowed to proceed. See HCJ 170/87 Assulin v. Mayor of the City of Kiryat Gat [1988] IsrSC 42(1) 678, 694-95. The subjective test looks to the behavior of the petitioner to determine whether, during the elapsed time, the evidence shows that the petitioner gave up his right to contest the ruling. The objective test asks whether the delay has any impact on the rights or interests of any administrative bodies or third parties. The final test requires the Court to determine whether the delay negatively impacts the rule of law. This is done by balancing the aforementioned considerations consistent with the relative weight of each circumstance. The balance is especially cognizant of the private or public interests impacted by the objective test and the impact on the rule of law. See AA 7142/01 Haifa Local Committee for Planning and Building v. Organization for Protecting the Environment, [2002] IsrSc 56(3) 673, 679.

In this case, it seems that the Petitioner’s delay in filing is evidence of her willingness to forgo her rights in the case, and that the Respondent may have legitimately relied on the decision of the National Labor Court, which is up for review now by this Court. However, due to the importance of the question arising from this petition, which concerns the relationship between various pieces of legislation and the prohibition against gender discrimination in the workplace, we conclude that we should review this petition despite the delay in filing. See HCJ 244/00 Organization for Democratic Discourse v. Minister of National Infrastructure IsrSc [2002] 56(6) 25, 80 - 81. The importance of our decision concerning the parties in this case may have a considerable impact on the rights and obligations of all employers and employees. Additionally, we should add that the Petitioner through her learned attorney, Adv. Orna Lin, has left to this court’s discretion whether it should adjudicate the case of the Petitioner or merely address the underlying legal question.

Furthermore, it is well known that this Court, when sitting as the High Court of Justice, will only intervene in a decision of the National Labor Court when the decision contains a clear legal error, whose correction justice demands. See HCJ 525/84 Hatib v. National Labor Court [1986] IsrSc 40(1) 673, 693; HCJ 3512/04 Shezifi v. National Labor Court [2004] IsrSc 59(4) 70, 74. In light of the importance and implications present in the questions arising from this case, we decided to adjudicate this case.

11.The main question before us is whether proving the elements of a claim under the Equal Pay Act will give rise to a claim under the Equal Job Opportunities Act. In other words, whether proving a difference in salary between a male and female employee performing the same, or substantially the same, task or one equal in value in the same workplace can serve as a basis for a claim under both statutes. In order to answer the question we will look to the language and purpose of the two statutes and determine the relationship between them.

First, the relevant language of Section 2 of the Equal Pay Act which stands at the center of this claim:

The Right to Equal Pay: 2. A male and female employee who perform the same task, or substantially the same task or one which is worth the same, at the same place of employment have the right to equal pay…

Once it has been proven that the employees work at the same workplace (this element has been discussed in the decision of the National Labor Court, but is not relevant to the question before us), the burden of proof shifts to the defendant to prove that the difference in salary is justified under Section 6 of the Equal Pay Act, which states:

Difference in Salary: 6(a) The provisions of Section 2 meant to prevent discrimination in pay, does not prohibit wage differences based on the character or nature of the work under consideration, including productivity, quality of work, seniority at work, training or education, or geographic location of the work, which do not constitute gender discrimination.

(b) In an action under this Act, the Labor Court has determined that when, in the dispute in question, the employees perform the same or essentially the same task or a task of equal value, the burden of proof shifts to the employer to prove that the difference in salary is justified under subsection (a)

The Equal Job Opportunities Act prohibits gender discrimination in the workplace. The basic point of the law is in Section 2(a) of the Equal Job Opportunities Act which states:

The Prohibition of Discrimination: 2(a) An employer may not discriminate between employees or between job seekers on the basis of their gender, sexual orientation, marital status, pregnancy, infertility treatment, in vitro fertilization treatments, parenthood, age, race, religion, nationality, country of origin, worldview, their political party, reserve duty, their potential to be called to reserve duty or duration of reserve service… regarding any of the following work decisions:

(1) hiring;

(2) work conditions;

(3) promotions;

(4) professional development;

(5) dismissal or severance pay; and

(6) retirement benefits.

Subsection 2(a) is qualified by subsection 2(c) of the Equal Job Opportunities Act which states, “There is no discrimination under this Act, when it is required by the nature or character of the task or the position.” Regarding the burden of proof in claims filed under the Equal Job Opportunities Act, Section 9 states:

Burden of Proof: 9(a) In an action filed by a prospective employee or an employee filing a claim under Section 2, the employer must prove that he acted in accordance with Section 2 when:

[(1)]Regarding hiring, promotion, working conditions, professional development, severance pay - if the employer established conditions or qualifications, and the employee proves that he or she fulfills the said requirements;

[(2)]Regarding dismissal - if the employee proves that his conduct did not amount to grounds for dismissal.

12.In this case, the Petitioner has proven, as the National Labor Court determined, that her salary was 35% lower than that of Mor – a male employee who performed the same task as the Petitioner. Given the circumstances and the fact that the Respondent did not justify the disparity under Section 6 of the Equal Pay Act, the Petitioner successfully proved her claim under the Equal Pay Act. The question in this case is now whether the disparity automatically gives rise to the conclusion that the Petitioner was discriminated against unlawfully by the Respondent (regarding her salary) because of her gender under Section 2(a) of the Equal Job Opportunities Act. To decide this, we must look to the purpose of each law to determine the relationship between them.

13.Both the Equal Pay Act and the Equal Job Opportunities Act were enacted for the purpose of advancing equality in the workplace by prohibiting an employer from discriminating on the basis of irrelevant or illegitimate considerations. The principle of equality and the prohibition against discrimination is an essential principle in our legal system and is a prerequisite for any democracy based on fairness and justice. As Justice M. Landau noted with regards to the principle of equality, “This notion, which is unwritten, is the essence of our entire constitutional system of law.” HCJ 98/69 Bergman v. Minister of Finance and State Comptroller [1969] IsrSc 23(1) 693, 698. This Court has upheld this principle on more than one occasion, and has even determined that this principle enjoys constitutional protection. See HCJ 6427/02 The Movement for Quality Government in Israel v. The Israeli Knesset [2006] IsrSc 61(1) 619, 688 - 89 (2006). Regarding the essence of this principle and the prohibition of discrimination in our system of law, then-Deputy President A. Barak stated:

[P]eople are different from one another. ‘...No person is completely identical to another’…Every person is a world in himself. Society is based on people who are different from one another. Only the worst dictatorships try to eradicate these differences. Moreover, the presumption behind the Basic Law: Human Dignity and Liberty is that every person is free to develop physically and spiritually as he sees fit (see HCJ 5688/92 Wechselbaum v. Minister of Defence [15]). This underlying freedom is the basis for the principle of equality. It means equality before the law and the law being impartial to the differences between people. It means equality in applying freedom. It means equality in opportunities. This equality presumes a normative arrangement that is applied uniformly to all individuals, irrespective of the factual difference between them. However, the principle of equality does not presume only one rule for everyone. Indeed, the principle of equality does not rule out different rules for different people. The principle of equality demands that the existence of a rule that treats people differently is justified by the nature and substance of the issue. The principle of equality therefore presumes the existence of objective reasons that justify a difference (a distinction, dissimilarity). Discrimination – which is the opposite of equality – exists therefore in those situations where a different law for people who are (de facto) different from one another is based on reasons that are insufficient to justify a distinction between them in a free and democratic society.... Therefore a particular law will create discrimination when two individuals, who are different from one another (factual inequality), are treated differently by the law, even though the factual difference between them does not justify different treatment in the circumstances. Discrimination is therefore based on the factors of arbitrariness, injustice and unreasonableness.

HCJ 721/94 El Al Israel Airlines Ltd. v. Danielowitz [1994] IsrSc 48(5) 749, 760 - 61.

The principle of equality and the prohibition of discrimination have been applied in different ways in the labor market, and have been explicitly mentioned in labor legislation. This is because of the presumption that labor relations is one of the main areas of society in which members of certain groups in society are prone to unjust discrimination affecting their economic and social status on the basis of unjustified stereotypes or prejudices. Preventing discrimination in the labor market will therefore prevent unjust prejudice based on assumptions which are irrelevant to the position in question. Furthermore, it stands to reason that in the long run, a ban on discrimination in the labor market, as has been implemented, will undermine stereotypes and prejudices that largely form the basis for illegal discrimination in society. As then-Justice E. Matza appropriately states,

[D]iscrimination against women in the employment and economic sectors has a cumulative effect on their negative image, as a class which is supposedly inferior, in other spheres as well. Thus, for instance, the lack of proper representation of women in various fields and various workplaces contributes to fostering a negative image of their ability to manage their lives independently. It follows that discrimination against women in economic spheres in its own way nurtures the long-term entrenchment of distorted social outlooks.

See HCJ 453/94 The Women’s Lobby v. The Minister of Transportation [1994] IsrSc 48(5) 501, 524 (henceforth, “In Re The Women’s Lobby”). In order to achieve these objectives and prevent illegal discrimination, the two statutes at issue here restrain an employer’s general right to contract and limit his discretion in managing his business.

14.The Equal Pay Act was enacted to decisively combat one of society’s greatest expressions of illegal discrimination, namely, compensating men and women differently for the same, or substantially the same, task or for a job of equal value. The statute was first enacted in 1964 and then reenacted in 1996. Section 1 of the Equal Pay Act explains the law’s purpose,

Purpose:

1.The goal of this law is to advance the principle of equality and prevent gender discrimination with regards to wage or any other aspect of the workplace.

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