employment laws for womens
TRANSCRIPT
Employment laws for womens
Israel’s labor laws with respect to women address three major issues unique to women: avoiding discrimination against women,
affirmatively protecting the special needs of women and prohibition against sexual harassment.
Discrimination at Work
Equal Employment Opportunities Law – 1988 (the “Equal Opportunity Law”) prohibits employers from discriminating among or
against their employees or employee candidates on the basis of gender, sexual orientation, personal status, because they are
parents, age, land of origin, opinion or party, reserve duty, religion or nationality. The Israeli courts have held that this list is not
absolute as other discriminatory concepts can be considered violative of the Equal Opportunity Law. The acts to be considered
in determining whether prohibited discrimination has transpired include those which take place in the course of hiring or
interviewing candidates, in setting employment conditions, in determining promotion opportunities, the termination of
employment, payment including the amount of severance pay, setting of retirement benefits, establishing extraneous conditions,
etc. A distinction which might otherwise be considered discriminatory may not be prohibited if the character or substance of the
position or job requires that distinction although an employer would need to be sensitive to the complex issues and consider the
likelihood that it may open the employer to a potential claim.
Pregnancy
According to the Employment of Women Law -1954, if an employee has been employed by a particular employer for at least 6
months, that employer may not terminate her employment without having received a special permit from the Minister of
Labor. It is important to stress, that even if a woman was employed for a shorter period, terminating her employment may still
violate the woman’s right to equality in work. The law prohibits terminating the employment of a woman who has given birth for
a period of 45 days after her return to work plus the notice period to which she is entitled which will not be credited against the
45 day period.
Moreover, according to the law, a pregnant employee is entitled to unique protections and benefits such as limitation on
additional work hours, limitation on work in proximity to radiation, etc.
Note from NBN Staff: According to the law, an employee does not have to disclose to her employer that she is pregnant (even
after the 5th month). However, since an employer has certain obligations regarding a pregnant employee (e.g., not requiring
her to work overtime), it may be in the woman's best interest to disclose her pregnancy.
Sexual Harassment
From 1988 until the late 90’s, the issue of sexual harassment in the work environment had been vaguely addressed by applying
the Law of Equality at Working Places – 1988 until it became evident that the provisions of the law were insufficient to address
the world-wide revolution regarding sensitivity to harassment. The Law for Prevention of Sexual Harassment - 1998 was the
legislative response to the phenomenon as it sets a number of strict rules regarding different types of behavior which are
considered to be prohibited sexual harassment. The stated purpose of the new law is to prohibit sexual discrimination in order
to protect a person’s dignity, freed and privacy as well as to promote equality between the sexes.
The law sets forth certain acts that are considered de facto to be sexual harassment, yet it is worded in such as way as to
prohibit acts which, even though not specified in the law, can still be prohibited. The list defined in the law includes among
others, extortion on a sexual basis, continuing sexual proposals which are rebuffed, repeated behavior addressing the person's
sex or sexual preferences or humiliating someone based on sex or sexual preferences. The law prohibits sexual harassment by
superiors and colleagues, the creation of a sexually charged environment and certain obscene acts and can be applied to
harassment of both women by men or men by women or between people of the same sex. Notwithstanding that the law, on its
face is intended to be unisex in its protection, it is clear that the law was issued mostly to protect women from harassment by
men.
The provisions of the law are quite strict. For example, any repeated insulting, humiliating or embarrassing behavior of a direct
superior towards an employee might be considered as a prohibited sexual harassment even if the employee never explicitly
said "objected". The law is more flexible when addressing such a behavior between two colleagues - in order for the behavior to
be considered as prohibited sexual harassment, the harassed party must have expressed discontent or opposition. The
purpose in the distinction in relationships is that an employee is typically in a subordinate position to his or her employer and,
therefore, the employee may be more reluctant to express opposition to the objectionable act for fear of losing his or her job,
promotion, etc. It is important to stress that the law also gives protections to individuals who submit complaints on sexual
harassment, testify on the matter and so on.
In addition to the above basic provisions of the law, there are regulations which set rules and procedures which employers must
follow in order to protect their employees and prevent sexual harassment at the working place. For example, the employer must
instruct supervisors to be aware of the possibility of sexual harassment at the work place and to take the necessary measures
to prevent their occurrence and to address complaints should they arise. The employer must take arrange a convenient and
appropriate grievance procedure for submission of
complaints regarding sexual harassment. In work places employing over 25 employees, the employer is obliged to follow
additional provisions to prevent sexual harassment.
The law sets both tort and criminal responsibility. The penalty may be a monetary fine and/or imprisonment.
ADDENDUM:
Recent Significant Amendments to Employment of Women Law
On July 25, 2007 the Knesset adopted several major changes to the Employment of Women Law, 5714-1954. Please consider
this memorandum as a brief summary of some of the pertinent changes in the law.
Maternity leave can, with the woman’s consent, be reduced below the 14 weeks provided by law, even for surrogate mothers or women who have chosen to give up their children for adoption if the newborn did not live. Section 6(e), as amended, provides that as long as the birth mother has at least 3 weeks of maternity leave post-birth, the employer and woman can, with a doctor’s consent, agree to shorten the statutory entitlement if the newborn did not live.
Under certain circumstances, a father whose spouse gave birth, may be entitled to full paternity leave without derogating from the mother’s rights to maternity leave. In addition to other rights to paternity leave provided in the law, new Section 6(g1) extends to the father full rights to paternity leave without reducing the mother’s entitlement to maternity leave if the child is under the exclusive care of the father and in his domain due to the mother’s incapacity or illness and a doctor certifies that due to such incapacity or illness the mother cannot care for the child.
Sick day pay for pregnancy protection in the event that it is not considered covered by Bituach Leumi. Section 7(c)(1) adds the right to be granted sick pay in the event that maternity bed rest is not covered by Bituach Leumi.
Tenure and other rights not impacted by unpaid leave taken by a pregnant woman due to unsafe conditions at work. Section 7(c)(1a) gives a woman to take leave without pay if a doctor claims that the work environment, type or the manner in which the work is conducted is unsuitable for the pregnant women provided that the employer shall not have provided the woman with a suitable alternative position.
Days taken off due to nursing is considered leave without pay and such time is not counted towards tenure: Section 7(c)(1c) grants the right to a nursing mother up until 6 months following the end of her maternity leave to take unpaid maternity leave which will not be counted towards tenure to nurse her child so long as she fulfills 4 requirements: (a) notifies her employer, (b) the work has been forbidden to the mother during the period of nursing because it may cause her harm, (c) the employer has not succeeded in finding alternative work for her and (d) the employee does not have the right to miss work based on section 7(d) of the law.
Absence from work due to fertility treatments can be considered sick days. Section 7(c)(4) has been amended to allow women to take sick days for fertility treatments generally (no longer limited to treatments ex vivo).
The right to unpaid maternity leave is to be counted from the date of giving birth. Section 7(d)(1) has been changed to calculate the maximum unpaid maternity leave to 12 months from the date of birth.
The rights of fathers have been extended to include payments into provident funds. Section 7A (a) includes the father’s right to continued investment in a provident fund even while he is on "paternity leave."
Prohibition of employing father’s during their paternity leave. Section 8 of the law prohibits employers from knowingly employing not only mother’s but father’s as well during their maternity/paternity leave, as applicable.
Prohibition to terminate father’s employment during paternity leave. Section 9(c)(1) protects fathers and mothers from having their employment terminated or notice of termination given during the period of maternity/paternity leave, as applicable, and for 60 days thereafter.
Non-renewal of fixed term contract is deemed to be termination. Section 9(g) expands the prohibition of terminating employment during maternity leave to not renewing a fixed term contract.
Increased supervisory responsibilities for officers of employers. Section 15(a) of the law imposes a personal obligation upon officers, including active managers and those responsible for the area which is subject of the violation, to prevent violation of the law.
Increased responsibilities upon employers who retain the services of women via contractor. Section 9(b1) provides that breaches of the law by contractor-employers of women at the behest of the contractor’s customer, shall be deemed the
violation of the contractor’s customer even though there is no actual employer-employee relationship between them – the burden of proof is on the contractor’s customer to prove that it was not responsible for the violation of the law.
This article is not to be considered as a legal opinion.
For legal advice, we suggest you contact legal counsel directly
Russell D. Mayer is senior partner at the Jerusalem-based law firm of Livnat, Mayer & Co.
If you have any comments or questions with respect to this article, please contact Russell at:
http://www.livmaylaw.co.il/