Discrimination

HCJ 2671/98

 

 

Petitioner:                               The Israel Women’s Network

           

                                                                        v.

           

Respondents:               1.         The Minister of Labor & Social Affairs

                                    2.         Baruch Marom

 

           

 

In the Supreme Court sitting as High Court of Justice   

[August 11, 1998]

Before Justices M. Cheshin, I. Zamir, D. Beinisch

Supreme Court cases cited:

[1]       HCJ 453/94, 454/94 The Israel Women’s Network v. Government of Israel, IsrSC 48(5) 501.

[2]       HCJ 4566/90 Dekel v. Minister of Finance, IsrSC 45(1) 28.

[3]       HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications, IsrSC 48(5) 412.

[4]       HCJ 703/87 Crown (Keren) v. Civil Service Commissioner, IsrSC 45(2) 512.

[5]       HCJ 6163/92, 6177 Eisenberg v. Minister of Building and Housing, IsrSC 47(2) 229.

[6]       HCJ 7175/95 Arad v. Knesset Speaker, IsrSC 20(1) 573.

[7]       HCJ 8160/96, 6458/96 Abu Krinat v. Minister of the Interior, IsrSC 52(2) 132.

[8]       HCJ 727/88 Awad v. Minister of Religious Affairs, IsrSC 42(4) 487.

[9]       HCJ 98/69 Bergman v. Minister of Finance, IsrSC 23(1) 693.

[10]     HCJ 7111/95, 8195 Federation of Local Authorities v. Knesset, IsrSC 50(3) 485.

[11]     HCJ 953/87, 1/88 Poraz v. Mayor of Tel Aviv Jaffa; Labor Faction of the Tel Aviv – Jaffa Municipality v. Tel Aviv – Jaffa City Council, IsrSC 42(2) 309.

[12]     HCJ 685/78 Omri Mahmud v. Minister of Education, IsrSC 33(1) 767.

[13]     CA 6926/93 Israel Shipyards Ltd. v. Israel Electric Corporation Ltd., IsrSC 48(3) 749.

[14]     HCJ 1000/92 Bavli v. Great Rabbinical Court, IsrSC 48(2) 221.

[15]     HCJ 6051/95, 6086/95 Rekanat v. National Labor Court et al; El Al Israel Airlines Ltd. v. National Labor Court, IsrSC 51(3) 289.

[16]     HCJ 693/91 Efrat v. Director of the Population Registry, IsrSC 47(1) 749.

[17]     HCJ 104/87 Nevo v. National Labor Court, IsrSC 44(4) 749.

[18]     HCJ 153/87 Shakdiel v. Minister of Religious Affairs, IsrSC 42(2) 221.

[19]     CFH 1558/94 Nafisi v. Nafisi, IsrSC 50(3) 573.

[20]     HCJ 4541/94 Alice Miller v. Minister of Defence [20], IsrSC 49(4) 94.

[21]     CA 84/64 Beit Hananya Ltd. v. Friedman, IsrSC 18(3) 20.

[22]     CA 89/85 Beit Herut – Workers’ Cooperative for Cooperative Agricultural Settlement Ltd. v. Glassman, IsrSC 41(3) 526

[23]     CFH 7325/95 Yediot Aharonot Ltd. v. Kraus, IsrSC 52(3) 1

[24]     HCJ 5503/94 Segal v. Knesset Speaker, IsrSC 51(4) 529

[25]     CA 3798/94 A. v. B., IsrSC 50(3) 133

 

Labor Court cases cited:

[26]     LabA MD/4-20 “Halamish” Ltd. v. The Tel Aviv Jaffa Workers Council, IsrLC 15, 320.

[27]     LabA MH/168-3 Alfariah v. Rotenberg, IsrLC 19 515

[28]     LabA 56/129-3 Plotkin – Eisenberg Brothers Ltd. (unpublished).

[29]     LabA 51/8-3 State of Israel v. Gestetner Israel Ltd., IsrLC 24, 65.

[30]     LabA 33/3-25 Flight Attendant Crew Committee v. Edna Hazin, IsrLC 4, 365.

 

American cases cited:

[31]     Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764 (1973):

 

 

Israeli articles cited:

[32]     Y. Tirosh, Proper Representation of Members of Both Sexes in the Civil Service, 30 Mishpatim 183.

[33]     I. Zamir, Political Appointments in Judicial Review, 21 Mishpatim 145.

[34]     O. Kamir, What's in a Woman's Name, 27 Mishpatim 327.

[35]     F. Raday, About Equality [35], in The Status of Women in Society and the Law (F. Raday, C. Shalev & M. Liben, eds.) (1995) 19.

[36]     C. Shalev, On Equality, Difference and Sex Discrimination, in Landau Book, vol. II, (A. Barak, E. Mazuz eds.) (1995) 893.

[37]     A. Rosen, Male Culture and the Status of Women in Technology, in Women – The Rising Power: Promotion of Women at Work, Shattering the "Glass Ceiling", 2^nd ed. (A. Maor, ed.) (1992) 124.

 

Attorneys for the Petitioner:   Adv. Rachel Benziman, Adv. Dafna Heker

Attorney for Respondent 1: Adv. Osnat Mendel

 

Judgment

 

Justice M. Cheshin:

1.         On March 29, 1998, the Minister of Labor & Social Affairs appointed Mr. Baruch Marom to the office of Deputy Director  of the IT & Information Systems Administration of the National Insurance Institute. The appointment was for a six-month trial period. Prior to the appointment, eight deputy directors held office in the National Insurance Institute, including one woman who was on leave (in circumstances under which it was reasonable to assume she would not return to work). The Petitioner – the Israel Women’s Network – is a public association whose goal is to fight for the promotion of equality and justice between the sexes in Israeli society. The Petitioner claims that the appointment is void because the Minister of Labor & Social Affairs, who holds the appointment power, failed to fulfil his important obligation to act for proper representation of both sexes among the deputy directors at the National Insurance Institute. This is the issue we will address: proper representation of members of both sexes – women and men – in the management of the National Insurance Institute in particular, and in the civil service in general.

            For the reader’s convenience: the Minister of Labor & Social Affairs, Respondent 1, will be referred to as the Minister or the Minister of Labor & Social Affairs; Mr. Baruch Marom, Respondent 2, will be referred to as Marom; the Deputy Director  for the IT & Information System Administration will be referred to below as the IT Deputy Director.

2.         The order of the discussion will be as follows: first we will look into the structure of the National Insurance Institute and its procedures for appointments insofar as relevant. We will then describe the proceedings in the appointment of Marom to the office of IT Deputy Director and explain how they fit into the Institute's  system. In the last part of the opinion, we will address the legal issues that arise.

The structure of the National Insurance Institute

3.         As prescribed by sec. 8(a) of the National Insurance Law [Consolidated Version], 5755-1995 (hereinafter: the Law or the NII Law), the National Insurance Institute is a statutory corporation that has three tiers of officers and employees.

The supreme authority of the National Insurance Institute is the National Insurance Institute Council (sec. 8(b) of the Law). Its main role is to oversee the actions of the National Insurance Institute and its management (sec. 12(1)). The Council Chairman is the Minister of Labor & Social Affairs (sec. 14 of the Law). He is the minister responsible for the implementation of the Law (sec. 400 of the Law), and he is the  supervisor of the National Insurance Institute (sec.  8(c)). In general, the Council can be described as essentially the same as a board of directors in another corporation. The Law does not include a provision on the manner of appointment of the Council members, other than the statement that the Council’s composition, manner of establishment, and conditions for termination of membership will be determined following consultation with the Labor & Social Affairs Committee (sec. 11(a) of the Law).

Second tier – under the Council – is the Management layer. The Management is the managerial and executive authority of the National Insurance Institute (sec. 8(b) of the Law), and it is supervised by the Council (sec. 12(1)). The members of the Management are the National Insurance Institute Director, who is the Administrative Chairman, the Vice Director and the Deputy Directors (sec. 18 of the Law). The Director, Vice Director and the Deputy Directors, are appointed by the Minister after consulting with the Council (sec. 20 of the Law).

Third tier – under the Management – is the tier of “other employees”. They are the subject of sec. 22 of the Law (under the title “Organization”), according to which the Management appoints the “other employees of the Institute” (sec. 22(a)). What is most relevant to the present case is sec. 22(b) of the Law, whereby “the appointment of the  Institute’s employees under this section shall be in accordance with the rules for the appointment of State employees, with such changes as may be required…”.

4.         Let us summarize for our purposes and say as follows: There is no direct provision in the Law on the matter of the appointment of the Council members; the  members of the Management are appointed by the Minister; the other employees are appointed by the Management in the same manner that State employees are appointed.

 

Marom’s appointment process

5.         The outgoing IT Deputy left office in October 1997, and in March 1998, as stated, the Minister appointed Marom to the vacated office. Truth be told, it is not clear to us how  the Minister found Marom – or perhaps, how Marom found the Minister – however, we will briefly describe the stages of the process, insofar as they were laid out before us. We received a  description of how candidates are found from Mr. Yossi Tamir, the outgoing Director  of the Institute. Mr. Tamir stated as follows before the Institute’s appointment committee (which we will discuss below):

...we did not publish a notice in the newspaper, but rather a search is performed mainly by companies that deal with such matters, and from  acquaintance with people in the field…an advertisement for the position of deputy director has never been placed in a newspaper, so the Minister did not deviate from the existing practice. About 24 candidates applied, some of whom were also directly referred to us by the Minister. Out of all of the applicants, we selected a small number of candidates. There were candidates who were referred by the Minister who were not accepted. Several candidates remained for the final stage, I interviewed them, spoke with them. In the last stage, the 4 candidates were brought to be interviewed by the Minister, and of the 4 candidates, the minister chose Baruch Marom (p. 2 of the committee minutes of March 23, 1998).

            The Minister’s statements in his affidavit will complete the description:

…candidates who approached me, including Mr. Baruch Marom, information on whose qualifications was brought to my knowledge several months prior to that, were also referred by me to be examined by the National Insurance Institute Director …

I did not receive a recommendation from parties outside the ministry with regard to Respondent no. 2, nor with regard to the other candidates, but I did orally consult with both the Director  of the Ministry of Labor & Social Affairs and the National Insurance Institute Director …

In the consultation that I held, it was emphasized to me that for the IT Department, at this time, the issue of the system’s management and organization is of greater and more important weight than the specific professional issue, although a person who lacks experience and knowledge in the field of data processing cannot be appointed for the job…

…in addition, I took into consideration the suitability and qualifications of the candidate to serve as a member in the National Insurance Institute Management in all of its fields of operation.

After a process of examination of various candidates, I chose Mr. Baruch Marom out of four candidates.

…the consideration of the system’s management and stabilization after a reorganization and big logistic changes tipped the scales in choosing him for the position, although there were better computer professionals among the other candidates.

There are currently several division managers in the IT Department. Their suitability for the offered position was examined, but none of them was found to be able to lead the system toward the goals that it faces. The situation was similar when the former deputy director in this area was appointed (pp. 2-4 of the reply affidavit of July 20, 1998).

Thus, from all of the aforesaid we have learned the following: out of the candidates of whom the Minister heard in one way or another, and after having consulted with the Director  of the Ministry of Labor & Social Affairs and the National Insurance Institute Director , the Minister reached the conclusion that it is Marom who is the candidate suitable for the office of IT Deputy Director.

6.         Once the Minister found that Marom was the proper candidate for the office, he presented the matter to two committees: the Appointments Review Committee that was established under the Government Companies Law, and to the Appointments Committee of the National Insurance Institute Council. Let us review the deliberations that were held by these two committees, in their chronological order.

The proceedings that were held by the Appointments Review Committee under the Government Companies Law

7.         Pursuant to his authority in Section 18B and 60A(b)(2) of the Government Companies Law, 5735-1975 (hereinafter: the “Government Companies Law”), the Minister of Justice appointed a committee called the “Appointments Review Committee” which is a “committee for the review of the qualifications and suitability of candidates for the office of a director, chairman of the board of directors, or director  of a government company…”. Inter alia – and fundamental to our case – the committee is supposed to review whether the composition of the board of directors of a government company gives “proper expression to representation of both sexes.” (sec. 18A(a); see para. 23 below). Since the National Insurance Institute is a statutory corporation, the aforesaid legal provision was applied to the appointment of its director and deputy directors (see: the provisions of sec. 60A of the Government Companies Law and the provisions of sec. 20 of the National Insurance Law).

8.         Thus, on December 31, 1997, the Minister requested that the Chairman of the Appointments Review Committee, Judge (emeritus) Mordechai Ben Dror, bring the matter before the committee over which he presides, for approval of the appointment of Marom to the office of IT Deputy Director.

9.         At this point we will take a small step back, to the appointment of another deputy director at the National Insurance Institute, an appointment that preceded Marom’s appointment. It was in the middle of November 1997 – about six months before his request with regard to Marom – that the Minister sought to appoint Mr. Efraim Shani as a member of the National Insurance Institute’s Management (we should recall that the Management members are the Director, Vice Director, and Deputy Directors). As customary, and as he is legally obligated, the Minister presented the request to the Appointments Review Committee, and the committee approved the appointment. However, on November 30, 1997, the committee chairman wrote the Minister a letter as follows:

In response to your request, I respectfully inform you that the Appointments Review Committee, pursuant to its authority under sec. 60A of the Government Companies Law, has examined Mr. Efraim Shani’s candidacy for membership on the National Insurance Institute’s Management.

The committee approves the appointment of Mr. Efraim Shani as member of the National Insurance Institute’s Management.

I would like to direct your attention to the fact that in the aforesaid Management there is only one woman as opposed to 8 men (including the aforesaid candidate who was approved at the committee meeting of November 27, 1997).

This state of affairs is inconsistent with the provisions of the law and the judgment in HCJ 454/94.

The Appointment Review Committee will examine the candidacies of men only after women candidates will be proposed to it (emphasis added – M.C.).

Note: the judgment that is mentioned in the letter is HCJ 453/94, 454 The Israel Women’s Network v. Government of Israel [1].

Thus, the Appointments Review Committee Chairman takes note of the discrimination against women in the National Insurance Institute’s Management, and sends a quasi–warning to the Minister that the committee will “will examine the candidacies of men only after women candidates will be proposed to it ”. Clear and unequivocal language.

10.       Back to our case. The Appointments Review Committee examined the Minister’s request to appoint Marom for office of IT Deputy Director, and on February 3, 1998, the committee chairman wrote a letter to the Minister as follows:

I would like to inform you that in its meeting of February 2, 1998, the committee resolved not to address the candidacy of the aforementioned.

The reason for that stems from the provisions of sec. 18A of the law [the Government Companies Law – M.C.] and the Supreme Court’s ruling in HCJ 454/94, and the Attorney General’s letter dated December 31, 1997, on the issue of proper representation of both sexes.

To date, only one woman holds office in the Council as opposed to 7 men.

This situation is inconsistent with the aforesaid provisions.

The committee has written to you on this issue before (see the committee’s decision of November 30, 1997, attached hereto), and referred you to the unfair representation of women and requested that women candidates be proposed to it.

The Appointments Review Committee will address the candidacy of the aforementioned only after women candidates will be proposed to it (emphasis added – M.C.).

True to its previous letter, the committee denied the Minister’s request and informed him that it would address Marom’s candidacy “only after women candidates will be proposed to it”.

11.       The Minister did not despair, and following a conversation with the committee chairman,  he wrote him the following letter on February 26, 1998:

Pursuant to our conversation and correspondence on the said issue, I wish to re-emphasize the vast significance of appointment of an IT Director at the National Insurance Institute.

This is a principal officer of the National Insurance Institute, who is in charge of the National Insurance Institute’s entire computerized system. Such a system is the essential tool without which it is impossible to perform the current work of the National Insurance Institute that affects the entire population of the State of Israel, both with respect to timely payment of pensions and the collection of insurance fees.

In addition, this deputy director is responsible for the development, operation and maintenance of the computerized systems, determination of the development approach and the necessary tools for that, provision of communication services to units at the National Insurance Institute head office and branches, centralization of data and information in the areas of social security and the establishment of a database in these areas.

Furthermore, following the retirement of the previous Deputy Director, the Director decided to assume the responsibilities of the IT Deputy Director, while noting the centrality and significance of the aforesaid role.

The issue of proper representation of members of both sexes (sec. 18A) will be given proper weight in future appointments.

I will be grateful if you bring the appointment of Mr. Baruch Marom to the position of IT Deputy Director at the National Insurance Institute for the review of the committee (emphasis added – M.C.).

This letter is somewhat puzzling, if only because it does not provide an answer to the committee chairman’s complaint about the failure to properly represent women in the National Insurance Institute’s Management, but rather the Minister replies that the position of IT Deputy Director is extremely important. Does this mean that the importance of the position indicates that only a man can fill it properly? All that the Minister tells us is that “the issue… will be given proper weight in future appointments”.

12.       Thus, the issue of Marom’s appointment was again raised before the Appointments Review Committee, and this time the committee accepted the request. In the words of the committee chairman to the Minister in his letter of March 11, 1998:

At the meeting on February 2, 1998, the committee resolved not to address Mr. Baruch Marom’s candidacy for deputy director and member of the National Insurance Institute’s Management, in view of the fact that the Management is not properly representative (there is only one woman as opposed to 8 men).

The committee wrote to you and to the deputy director of your ministry on this matter in its letter of February 3, 1998, and you both mentioned the fact that for it to be possible to appoint a woman for the National Insurance Institute’s Management, it is not sufficient that a suitable woman candidate to be found. The reason for this being that under the law, a woman candidate can only be a woman who holds office as a vice director or deputy director of the National Insurance Institute (see sec.18 of the National Insurance Law). Therefore, a suitable woman candidate must first be found for appointment to the position of vice or deputy as aforesaid, so that she may then be appointed as a member of the Management.

You notified the committee that in the next appointment for the position of one of the deputy directors you intend to appoint a woman candidate to such a position and in any event, and when a woman is appointed to such a position, her candidacy for membership in the National Insurance Institute’s Management will, in any event, be presented to the committee.

Thus, the committee was asked to approve the appointment of the aforementioned candidate subject to the aforesaid, pursuant to which the next appointment as one of the National Insurance Institute’s deputies will be a woman, and that once such a woman is appointed, her candidacy will be submitted for approval by the committee as a member of the National Insurance Institute’s Management.

Subject to the receipt of a letter as aforesaid, the committee approves the candidacy of the aforementioned (emphasis added – M.C.).

The Minister undertook before the committee chairman – apparently orally – that the next appointment for a deputy’s office would be a woman, and consequently, the committee agreed to approve Marom’s appointment. At the committee chairman’s request, the Minister put his undertaking in writing, and as he stated in his letter dated March 16, 1998:

I would like to thank you and the committee members for having considered the qualifications of Mr. Baruch Marom for the position of IT Deputy Director and member of the National Insurance Institute’s Management, and approved his candidacy.

With respect to your letter, I notify you that when it is decided in the future to appoint a deputy director for the National Insurance Institute (who is also a member of the Management by virtue of sec. 18 of the National Insurance Law), I will act in accordance with what was stated in your above-referenced letter.

Marom’s appointment was completed, as aforesaid, on March 29, 1998.

13.       While the Minister and the committee chairman were exchanging letters on the subject of Marom’s appointment, Ms. Hanna Ranel – Director of the Software Infrastructure Division of the IT Department, who has been working at the National Insurance Institute for some 26 years – wrote to the Minister and presented her candidacy for the office of IT Deputy Director. In her letter, Ms. Ranel specified her experience and qualifications, and further emphasized the importance of appointing a woman, particularly in view of the scarcity of women in the National Insurance Institute’s Management. The Minister’s office confirmed to Ms. Ranel that her letter was received. Beyond that, Ms. Ranel received no further response.

14.       The Petitioner in our case also wrote to the Minister, and directed his attention to Ms. Ranel’s potential candidacy. In her letter, the Petitioner also pointed out the need to act for the proper representation of the sexes in the National Insurance Institute’s Management. At the same time, the Petitioner also contacted the chairman of the Appointments Review Committee.

The committee chairman answered the Petitioner on March 16, 1998, stating, inter alia, the following:

The committee over which I preside has decided to inform the Minister that it will only appoint a female candidate as a member of the National Insurance Institute’s Management, and in any event, it is necessary to first appoint a woman for the position of deputy director of the National Insurance Institute.

The Minister of Labor & Social Affairs agreed and confirmed in writing that the next appointment position [sic – M.C.] of deputy director of the National Insurance Institute will be of a woman. Obviously, this is not about just one additional appointment, but at this stage (after there is already one woman in the position) there will be at least one more woman, and thus we will also continue to maintain this principle of equality in the future as well.

And finally, about one week after the completion of Marom’s (temporary) appointment, on April 5, 1998, the Minister answered the Petitioner’s letter to him, as follows:

I hereby inform you that I am acting for the promotion of women in all of the systems for which I am responsible.

The promotion of women at the level of the National Insurance Institute’s Management and in the other positions in this institute is and will be carried out in the future, and as necessary, to a better extent than in the past.

15.       Thus far – the proceedings that in the Appointments Review Committee under the Government Companies Law.

The proceedings before the Appointments Committee of the National Insurance Institute Council

16.       As provided in sec. 20 of the National Insurance Law, the Minister is to appoint a deputy director for the National Insurance Institute after consulting with the Council. The Council delegated its power to an appointments committee, and the issue of Marom’s appointment was raised before that committee in its meeting of March 23, 1998 (following the approval of the appointment by the Appointments Review Committee under the Government Companies Law). The committee examined Marom’s candidacy, and following deliberation, resolved to approve it for a trial period, as stated in its resolution dated March 23, 1998:

Resolution: The committee advises the Minister to appoint Mr. Baruch Marom as IT Deputy Director of the National Insurance Institute.

In view of the nature of the position, its centrality in the National Insurance Institute and essential nature, the committee recommends to the Minister that the initial six-month period from the date of appointment be a trial period.

Upon conclusion of such period, the opinion of the National Insurance Institute Director on the functioning of Mr. Baruch Marom will be presented to the Appointments Committee.

The aforesaid resolution led to Marom’s appointment for a six-month trial period.

The issues in dispute

17.       The Petitioner challenges Marom’s appointment to the office of IT Deputy Director at the National Insurance Institute, based on two main arguments. One argument is that the Minister failed to fulfill his obligation to act for the proper representation of women in the National Insurance Institute’s Management. The second argument focuses on the issue of Marom’s qualifications. According to the Petitioner, Marom lacks proper qualifications for the office of IT Deputy Director, which raises a concern that his appointment was based on irrelevant considerations, and that such irrelevant considerations also resulted in the failure to find women candidates with qualifications that are similar to, or even exceed, Marom’s qualifications.

Let us begin with the second argument: the issue of Marom’s qualifications.

The issue of Marom’s qualifications

18.       The Petitioner claims, as aforesaid, that Marom lacks qualifications to hold office as IT Deputy Director, and its main arguments are as follows:

First, the absence of any professional education in the computer field, which – needless to say – is an essential qualification for appointment to the office of IT Deputy Director. In this context it should be noted that the National Insurance Institute’s Appointments Committee also raised concerns with regard to that shortcoming in Marom’s professional education. So, for example, we hear the following from the Director of the Ministry of Labor & Social Affairs at the committee’s meeting: “It seems to me that the candidate is suitable for the position, however, if there were someone who had previously managed professional systems, it would have been preferable”. And the question is: Could no man or a woman be found who previously managed professional systems? Moreover, upon taking office, Marom requested that a professional advisor be appointed for him. This request was refused.

The Minister’s answer to these arguments is that the IT Department is currently undergoing re-organization,. Therefore, what should be emphasized in appointing the Deputy Director is specifically his managerial and organizational abilities, as distinct from his computer abilities. Thus, it was Marom’s organizational skills that led to him being chosen “even if among the other candidates there were better computer professionals”.

The second argument: It was not proven that Marom has organizational and HR management qualifications. Neither his CV nor his interview by the committee revealed the scope of the systems that he managed or the number of people over which he was directly in charge.

Finally: The Petitioner finds support for its arguments in the doubts that arose in the Appointments Committee with respect to Marom’s suitability for the designated position. Those doubts led the committee to decide to appoint him for a six-month trial period.

The Minister’s answer is that Marom has proper experience, and in any event, his suitability for the position will be examined at the end of the trial period. The Minister finds support for the appointment in the decision of the Appointments Review Committee under the Government Companies Law.

19.       We pondered the Petitioner’s argument both in terms of the strength of the opposing considerations and in terms of whether this is the proper case for intervening in the Minister’s decision. However, we have chosen to pave a different route, and have, therefore, decided not to rule on this cluster of arguments presented by the Petitioner. Moreover, Marom has been holding office since the end of March, 1998, some four-and-a-half months, and even if it would have been proper for us to address his suitability for the position, at present – approaching the expiration of the six trial-months – it would not be proper for us to do so.

Thus, let us turn to the Petitioner’s main argument on the issue of discrimination against women in the National Insurance Institute’s Management.

Does Marom’s appointment violate any statutory provisions?

20.       Pursuant to his authority under the National Insurance Law, the Minister appointed Marom to the office of IT Deputy Director of the National Insurance Institute. Did the Minister violate an obligatory statutory provision in making that appointment? Did he skip over a mandatory precondition to the appointment? And in our case, in making Marom’s appointment, did the Minister breach a statutory duty for the proper representation of women in the National Insurance Institute’s Management?

21.       According to the Petitioner, the Minister did indeed breach a statutory duty, as set forth in sec. 15A of the State Service (Appointments) Law, 5719-1959 (hereinafter: the Appointments Law). That duty is to give proper representation to women in the National Insurance Institute’s Management. Is this indeed the case? Let us set our sights on the law and find out.

Section 15A of the Appointments Law

22.       Section 15A of the Appointments Law (as originally enacted) tells us the following:

Fair representation for members of both sexes           

15A.    (a)        Among the employees in the State service, proper expression shall be given, to the extent that circumstances allow, to the representation of members of both sexes (hereinafter: proper representation).                                  

(b)       If the Civil Service Commissioner deems that among the employees of a Ministry, or a unit of a Ministry, or in a type of position, there is no proper representation as aforesaid, he shall act for the promotion of proper representation, to the extent that circumstances allow.

(c)        The Commissioner’s acts may be performed in a plan that will include provisions on preference in a tender for a position, or a group of positions, or a rank, or a group of ranks that will be specified in the plan, and for the period to be determined therein. The plan requires the approval of the Service Committee. In this subsection, “preference” – giving preference in a tender to a member of the sex that is not properly represented, when candidates of both sexes have similar qualifications.                                    

(d)       The Civil Service Commissioner will inform the Knesset’s Constitution, Law & Justice Committee of the principles of the plan as provided in subsection (c). The principles are not required to be published in the Official Gazette.

(In the meantime, the section was amended by the Equal Opportunities for Disabled Persons Law, 5758-1998, to confer rights to proper representation to disabled persons. However, we will refer to the original version, which is the currently binding version insofar as proper representation of members of both sexes is concerned).

This law derives from the principle of equality, and includes two secondary rules with respect to appointments in the civil service: first, the rule that mandates that “proper expression shall be given, the extent that circumstances allow, to the representation of members of both sexes” (sec. 15A(a)); and second, when it arises that the representation is improper anywhere in the civil service, the Civil Service Commissioner will “act” for the “the promotion of proper representation, to the extent that circumstances allow” (sec. 15A(b) and (c)). These two secondary rules are united as one, and the purpose of both is to do what can be done for the proper representation of both sexes in the civil service.

Under the assumption that sec. 15A of the Appointments Law governs Marom’s appointment, it would seem that the Minister did not do what is required for the appointment of a woman to the National Insurance Institute’s Management – he failed to give “proper representation” to women in the Management, and he certainly did not take “affirmative action”. However, the question is: Does sec. 15A apply to appointments of deputy directors in the National Insurance Institute? We checked, and found no legal basis for this argument.

Section 15A of the Appointments Law can apply to appointments of deputy directors in the National Insurance Institute by virtue of three sources: By virtue of the Appointments Law, by virtue of the National Insurance Law, or by virtue of some other, third law. As for the Appointments Law, we do not find that sec. 15A applies to appointments of deputy directors in the National Insurance Institute. The Appointments Law is solely applicable in the civil service, and the National Insurance Institute is not part of the civil service. We did not find a third law and therefore only the National Insurance Law remains as a source. As for the National Insurance Law, we have seen above (in para. 3) a description of the three tiers of people holding office and working in the National Insurance Institute, and we learned that “the rules for the appointment of State employees” (as provided in sec. 22(b) of the National Insurance Law) apply to “other employees” – “other employees of the office[1][sic.[” in the words of sec. 22(a) of the Law – in the National Insurance Institute. The Law refers to the third tier that we discussed, as distinct from the tier of the Director, Vice Director and the Deputy Directors, and as distinct from the tier of the Council members. Thus, we find that the provisions of sec. 15A do indeed apply to the “other employees” as prescribed in sec. 22 of the National Insurance Law – “other  employees of the Institute” prescribed in sec. 22(a) – and at the same time do not apply to the Council members or the Board members.

Thus, sec. 15A of the Appointments Law does not directly apply to the Petitioner’s case.

Section 18A of the Government Companies Law

23.       Everyone agrees that sec. 18A of the Government Companies Law does not apply to Marom’s appointment. However, as we will see below, the description of the relevant background will be incomplete if we do not discuss this legal provision as well, if only briefly. Section 18A tells us as follows:

Proper representation for both sexes

18A.    (a)        The composition of a board of directors of a government-owned company shall express proper representation of members of both sexes.

(b)       Until expression of proper representation as aforesaid is achieved, the ministers will appoint, to the extent that circumstances allow, directors who are members of the sex that is not properly represented at such time in the company’s board of directors.

If we compare this section of the law to sec. 15A of the Appointments Law (see para. 22 above) we can see that the two are substantially the same, and two purposes unite them: one, by way of a principle, to give proper representation to members of both sexes in various institutions, and two, in view of the unfortunate history with regard to the improper representation of women (we say “women” although the language of the law is neutral) – to act for the preference of women in appointments to such institutions.

Like sec. 60A of the Government Companies Law, sec. 18A – and additional provisions of the Government Companies Law, as well – were applied to statutory corporations. However, sec. 18A – unfortunately – as distinct from other provisions of the Government Companies Law – was only applied to the appointment of members to the National Insurance Institute Council. Originally, sec. 18A was not applied to the appointment of directors  of government companies, and for this reason, it would appear, it was also not applied to the appointments of the National Insurance Institute Director, Vice Director and Deputy Directors. Hence, this law that prescribes equal representation and affirmative action does not apply to the appointment of the members of the National Insurance Institute’s Management.

24.       Now, let us take a closer look at the National Insurance Law and be amazed by the miracle, if it indeed is a miracle. As we have seen (above, para. 3), the offices and positions at the National Insurance Institute are arranged in three tiers: the Council tier – which is the upper tier; the Management tier – which is the middle tier; and the tier of the “other employees of the Institute” – which is the third tier. The Council tier – the upper tier – is subject to sec. 18A of the Government Companies Law. The Council must express proper representation of members of both sexes and “until the expression of proper representation is achieved” the ministers must exercise affirmative action. The same also applies to the bottom tier – the tier of “the other employees of the Institute” – that must bend the knee and bow to the provisions of sec. 15A of the Appointments Law. The civil service must express proper representation of members of both sexes, and in the absence of proper representation, the Service Commissioner (in our case: the Management) must act to further proper representation by various methods listed in the law. But as for the middle echelon – the Management – the manner of appointment of its members, surprisingly, neither bends the knee nor bows to any statutory norm whatsoever. As it is written: “A thousand may fall at thy side, and ten thousand at thy right hand; it shall not come nigh thee” (Psalms 91:7).

25.       Now that we have found that the appointment of a deputy director of the National Insurance Institute is neither subject to sec. 15A of the Appointments Law, nor to sec. 18A of the Government Companies Law, has our journey has come to a dead-end? In appointing a deputy director of the National Insurance Institute, can the Minister choose whomever he pleases without being bound by any norm whatsoever that pertains to equality of the sexes? Or does some binding norm apply to the Minister? This is the question that we will now address, turning from the general to the particular, from the wide to the narrow, from basic principles to rules, and from the legal system as a whole to the National Insurance Law.

From the general to the particular

26.       Our path will be as follows: first we will discuss principles that apply to the process of appointment of people to the civil service; we will move on to discuss the principle of equality as one of the aforesaid principles; we will bring ourselves closer to the principle of equality in applying it to “members of both sexes”, we will try to understand the unique nature of the principle of equality between women and men; we will move on to legislative affirmative action; and we will try to learn of the existence – or non-existence – of a doctrine granting proper representation to women in public entities.

Basic principles of appointment procedures in public law; the principle of equality; the principle of equality between women and men

27.       The rules of tenders apply to the majority of offices and positions in the civil service. Any tender – if performed properly and with integrity – has the power to maximize the best: anyone who fulfills the tender conditions can present candidacy, and ultimately, the best candidate will be chosen. The tender method will bring the best, not the closest, to the civil service: LabA MD/4-20 “Halamish” Ltd. v. The Tel Aviv Jaffa Workers Council [26],  327. Admittedly, the tender method did not succeed in eliminating discrimination against women. For this reason – among others – sec. 15A(c) of the Appointments Law was also enacted (see para. 22 above). For the interpretation of this provision of the law, see: Y. Tirosh, Proper Representation of Members of Both Sexes in the Civil Service [32]. However, everyone would agree that the tender method is the best that has been found until now – if you will: the method that constitutes the lesser of evils to maximize the best and minimize the worst.

            In the present case, the Minister is not obligated to issue a tender, and in any case – and unlike in a tender – no person has a right to propose his candidacy for the office of Deputy Director of the National Insurance Institute. Thus, for example, Ms. Hanna Ranel, Director of the Software Infrastructure Division at the IT Department and an National Insurance Institute employee for some 26 years. Ms. Ranel proposed her candidacy for the office of IT Deputy Director, however, other than a confirmation of the receipt of her letter, she received no response whatsoever.

            Thus, the relevant question is, are there no public-law norms that provide guidance to the Minister and obligate him to act in a certain manner?

28.       The appointment of a deputy director at the National Insurance Institute is an act in the field of public law, and like any act in the public field, the appointment is subject to the accepted  norms of public law (which constitute public law). When acting within public law, the appointing authority acts as a public trustee, and as nothing belongs to a trustee, so, nothing belongs to the appointing authority.  And as a trustee, it is required to behave like a trustee: with integrity and fairness, and without weighing irrelevant considerations, reasonably, equally, and without discrimination, see HCJ 4566/90 Dekel v. Minister of Finance, [2] 33; HCJ 987/94 Euronet Golden Lines (1992) Ltd. v. Minister of Communications, (the Euronet case [3]); HCJ 703/87 Crown (Keren) v. Civil Service Commissioner, [4] 519; HCJ 6163/92, 6177 Eisenberg v. Minister of Building and Housing, (the Eisenberg case [5]). The best will win and those who are not quite as good will wait their turn. Thus, for example, the authority may not take political party affiliations into consideration for a candidate’s benefit (HCJ 4566/90 Dekel [2] above, and pursuant thereto, Itzhak Zamir’s article Political Appointments in Judicial Review [33]; HCJ 7175/95 Arad v. Knesset Speaker [6], 604-610; LabA MH/168-3 Alfariah v. Rotenberg [27]; HCJ 8160/96 6458/96, Abu Krinat v. Minister of the Interior [7]. There are formal qualification considerations – such as specific education – but even if a certain candidate fulfills such educational prerequisites, even then the appointing body may take additional, pertinent considerations into account, both for and against: the Eisenberg case [5] at 256-257; HCJ 727/88 Awad v. Minister of Religious Affairs [8] 491.

Holders of authority to appoint or choose are obligated to act with integrity and fairly, without taking irrelevant considerations into account, reasonably, equally and without discrimination. If they fail to do as is required of them, an inappropriate person may be appointed or chosen. If a proper person is not chosen, public service will suffer. However, the reason that such duties that are imposed on the holder of the authority to appoint or choose does not solely concern a certain appointment or choice. Our concern is not only about a specific improper appointment, but also the fear that the disease will spread and the culture of appointments in the civil service will be forever lost. Moreover: anyone improperly appointed, will follow the same crooked path that he was taught when he must make appointments or choices. The parents have eaten sour grapes, and children who saw their parents will also eat sour grapes. We all know where this path leads.

29.       A fundamental principle of governance – standing head and shoulders above all other principles – is the principle of equality, and by its other name: the principle of non-discrimination. Equality is “… a fundamental principle of our constitutional regime” (HCJ 98/69 Bergman v. Minister of Finance [9], 698, per Justice Landau). So it is in the public law, and so in every single aspect of our life in society. “The principle of equality, is with us from time immemorial, it is the beginning of all beginnings, and all the rest is merely commentary and clarification” (HCJ 7111/95, 8195 Federation of Local Authorities v. Knesset (the Federation of Local Authorities case [10]), 501); and see, ibid, 499ff. Justice Barak stated similarly in HCJ 953/87, 1/88 Poraz v. Mayor of Tel Aviv Jaffa; Labor Faction of the Tel Aviv – Jaffa Municipality v. Tel Aviv – Jaffa City Council (the Poraz case [11]), 332:

… nothing is more destructive to a society than the feeling of its sons and daughters that double standards are being applied to them. The feeling of inequality is among the harshest of sensations. It harms the forces that unite society. It harms a person’s self-identity.

And see the Federation of Local Authorities case [10]), at 503:

And discrimination, as we know, is the worst of all evils. Discrimination utterly undermines relationships among human beings. A sense of discrimination paralyzes and destroys the fabric of human relationships. We encounter the phenomenon of discrimination daily: in the workplace, at home, standing in line, in the attitude of holders of authority to citizens and residents. So it is in personal discrimination, social discrimination, ethnic discrimination, each and in every type of discrimination. Discrimination destroys families. Ongoing discrimination will destroy a nation and bring a kingdom to its knees. Thus, little wonder that the enlightened members of society in every place and in every generation act to eradicate discrimination. It is an unceasing battle – a daily battle. It may be likened to pushing back the sea, where if you rest for but a moment, you will be swept away and engulfed. Obviously, day-to-day human relationships are primary, and even if we don’t strictly fulfil the commandment of “love your neighbor as yourself”, we will certainly demand, and are demanded, to comply with the injunction that “anything that is hateful to you, do not do to your fellow.

There is no need to further elaborate. If we know this – we know everything; and if we don’t – we know nothing. The principle of equality flows through every fiber of the law, and is an integral part of the genetic code of each and every legal rule. That is the case for every law and that is the case in the law of tenders, in which the principles of equality and non-discrimination are fundamental: HCJ 685/78 Omri Mahmud v. Minister of Education [12], 778; CA 6926/93 Israel Shipyards Ltd. v. Israel Electric Corporation Ltd. [13], 770; the Dekel case [2]; the Crown case [4], 521.

30.       Having said all that, we know now what we knew already in the beginning: when appointing a deputy director of the National Insurance Institute, the Minister must act with integrity, fairness, and without irrelevant considerations. And most important in the present matter: he is obligated to act equally and without discrimination.

31.       The principle of equality is, in theory and in practice, the father, or perhaps we should say, the mother principal. When we incorporate it into any legal subject, the principle of equality adapts to its surroundings, and at the same time, it affects its surroundings. The principle of equality in election laws is not the same as the principle of equality in the law of tenders, and the principle of equality in the laws of tenders for services or goods is not the same as the principle of equality in tenders for a position in the civil service. In practice, the principle of equality constitutes a bundle of principles, of which equality in the abstract is the common denominator. The principle of equality between the sexes, between women and men, holds a place of honor among those secondary principles.

32.       This all began in our legal system with the Declaration of the Establishment of the State, in which the founders assumed the obligation that the State of Israel will “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex…”. This undertaking in regard to the status of women was concretely expressed in the Women’s Equal Rights Law, 5711-1951, in which sec. 1 states: “A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal proceeding, against women as women, shall be of no effect”. More than instructing us as it does, this section of the law heralds the status of women in law. In the words of Justice Barak in HCJ 1000/92 Bavli v. Great Rabbinical Court [14],  240:

The Women’s Equal Rights Law is a “majestic” law”. It establishes the principle of equality in the State’s legislation. This principle is explicitly mentioned in the Declaration of Independence which determines that the State of Israel will ensure equality among its inhabitants “irrespective of religion, race or sex”. The aforesaid principle is among the basic principles of the Israeli legal system.

33.       This was the beginning, and as we followed our path and the sound of the trumpet grew louder and louder [Exodus 19:19]. One law followed another, and another, and all of them – one by one – were braided into the wick of equality. Below are some of the laws (not necessarily according to the order of their enactment): the Male and Female Workers (Equal Pay) Law, 5756-1996 (replacing the Male and Female Workers (Equal Pay) Law, 5724-1964). Section 1 of the law determines its purpose, the purpose of equality, and reads:

This law is intended to promote equality and prevent discrimination between the sexes in all that concerns wages or any other compensation in relation to work.

It is immediately followed by sec. 2 of the law:

                        The right to equal wages

2. Female and male workers employed by the same employer in the same workplace, are entitled to equal wages for the same work…

Similarly, the Equality of Opportunities in Labour Law, 5748-1988, states:

Prohibition of Discrimination

2.(a)     An employer shall not discriminate between his employees or between applications for employment on the basis of their sex…with respect to any of the following:

                                    (1) acceptance for employment;

                                    (2) conditions of employment;

                                    (3) promotion;

                                    (4) training or professional studies;

                                    (5) dismissal or compensation for dismissal;

(6) benefits and payments given to an employee in relation to retirement.   

(b)       For the purposes of subsection (a), the setting of irrelevant conditions shall be seen as discrimination.

(c)        …

And see and compare: HCJ 6051/95, 6086/95 Rekanat v. National Labor Court et al; El Al Israel Airlines Ltd. v. National Labor Court [15]; LabA 56/129-3 Plotkin – Eisenberg Brothers Ltd. (the Plotkin case [28]); LabA. 51/8-3 State of Israel v. Gestetner Israel Ltd. [29].

The Names Law, 5716-1956, originally saw a wife as following her husband with respect to her surname. Later, the law was amended (in the Names (Amendment No. 3) Law, 5756-1996), and since that amendment, a woman hold holds the same right as a man. See: Orit Kamir, What's in a Woman's Name [34], and see: HCJ 693/91 Efrat v. Director of the Population Registry [16].

Lastly, we will mention the Authority for the Advancement of the Status of Women Law, 5758-1998, and its purpose as stated in sec. 1:

                        Purposes of the Law

                        1.         The purposes of this law are to advance equality between the sexes in Israel, to achieve coordination among the bodies that treat of the status of women in Israel, to promote education, legislation and enforcement in these areas, to promote activity for the prevention of violence against women, to provide the government with the tools and information needed to achieve these purposes, and to establish a central authority that will act to implement these principles.

34.       Needless to say, the principle of equality that we are discussing is in essence “substantive” equality, and substantive equality simply means justice and fairness.

A close examination will reveal – unsurprisingly – that “substantive equality” is nothing other than one of the derivatives of justice and fairness. Justice and fairness have many aspects, one of those aspects is equality. The principle of equality can be formulated in many ways that are not identical to one another: equal prospects, equal results, equal starting point, equal resource allocation, equal needs, etc. However, “substantive equality” in each of the aforesaid is synonymous – both in theory and in practice – with justice and fairness as viewed by the members of a specific society in a specific period. In other words: equality that leads to justice, equality whose path is the path of fairness (the Federation of Local Authorities case [10], 502).

We should further remember that the principle of equality looks to the result: as pure as a person’s intention may be, if the result of his actions is discriminatory, his actions will be annulled, or as Justice Bach stated in HCJ 104/87 Nevo v. National Labor Court [17], 759:

I am prepared to assume that the Petitioner’s employers did not intend to discriminate against her and the other women employees when they signed the work constitution. However, the Respondent’s intention is inconclusive with regard to the issue that we are required to decide, since the test for examining the existence or non-existence of discrimination is objective and not subjective. It is not the motive for creating a difference between men and women that decides the matter, and in order to determine that discrimination exists, the final result as reflected in the social reality must be examined.

And so stated Justice Barak in the Poraz case [11] (at pp. 333-334):

…the city council did not seek to infringe the principle of equality because it believed that it is wrongful. The opposite is true. Many city council members repeatedly stated that they accept the principle of equality, however they were not prepared to realize it. Thus, they violated it. The question is not only about the motive of those who decide; the question is also about the result of the decision. A decision is wrongful not only when the motive is to infringe equality, but also when the motive is different but equality is prejudiced in practice.

See further: Frances Raday, About Equality [35]; Carmel Shalev, On Equality, Difference  and Sex Discrimination [36].

35.       Over the years, the word of the legislature in regard to the equality of women went hand-in-hand with the case law that interpreted the law, filled the cracks, and that stood on its own two feet by virtue of the basic principle of equality. Thus, for example, Deputy President Elon ruled in HCJ 153/87 Shakdiel v. Minister of Religious Affairs (the Shakdiel case [18],  240, on the issue of non-selection of a woman as a member of the religious council:

…the exclusion of a female candidate from appointment to a religious council, because she is a woman, clearly contradicts a fundamental principle of Israeli law which prohibits discrimination on grounds of sex. This fundamental principle was laid down in the Declaration of Independence, and is among those fundamental principles that have been given expression in legislation, and is not merely an “unwritten” right that derives from the judicial legislation of this court.

            And in like manner, Justice Barak stated (ibid., 274):

Between two possible interpretations, we must choose that which guarantees equality in the optimal manner, and reject the interpretation that contradicts equality. It follows that we must interpret the Religious Services Law in a manner that guarantees equality of the sexes. Indeed, it is a fundamental principle of our constitutional regime that equality between men and women be ensured, and that a man should not be discriminated against because he is man, nor a woman because she is a woman.

            That was also the case in the Poraz case [11] when a local authority refrained from choosing a woman for the assembly that selects the city rabbi, merely because she was a woman, regarding which Justice Barak said (at p. 322):

The set of considerations that the city council may take into account is the set of considerations that falls within the “four cubits” of the Religious Services Law and the regulations. This set of considerations is determined through the interpretation of the Religious Services Law and the regulations. Such interpretation should take into account the language of the law and the regulations on one hand, and the purpose of the law and the regulations on the other … It should further be assumed that such purpose includes – in the absence of contradictory evidence –  purposes designated to fulfill values and principles of our legal system. The interpretation of the language of the law and the regulations against the background of their (particular and general) purpose, leads, in my opinion, to the conclusion that a consideration that denies a woman, as a woman, the ability to be included in the selecting assembly due to the practical concerns that I pointed out, is an irrelevant consideration, inasmuch as it contradicts the purpose underlying the law and the regulations, which is the purpose of realizing the principle of equality.

            Similar statements were made by the Court, per Justice Bach, with respect to the obligation of women to retire at a younger age than men, and in his own words (the Nevo case [17], 761):

When the court encounters a distinction between groups, it must carefully examine whether such distinction is not based on stereotypical perceptions that derive merely from prejudice.

Establishing the discriminatory distinction between men and women in regard to retirement age reinforces the perception that women cannot be equal in the job market and this, in effect, infringes the equality of opportunities for women.

            If all of the aforesaid is not enough – and it appears that it is – below is another contribution from CFH 1558/94 Nafisi v. Nafisi [19], 626:

The point of departure of my journey is to be found in the principle of women’s equality, a principle that has been accepted and taken root in Israeli law – in statute and in case law ... Any attempt to challenge this principle of women’s equality would be the equivalent of heresy in our society. The community property presumption between spouses – a presumption created by the courts – is like a branch that sprouted from the tree of equality, and it is from equality that it draws its strength. This is also true of the provisions of the Law and its resource balancing agreement, which were also derived from the principle of equality. In the Bavli case - as we are all aware – the Court gave strong support to the community property rule between spouses as an outgrowth of the principle of equality, whether as a derivation of the Women’s Equal Rights Law, or whether as an independent rule in its own right...

Moreover, the principle of equality between men and women and between spouses has assumed the status of an overarching principle in Israeli law – or, if you prefer, a fundamental principle – and within its prescribed boundaries all other normal provisions and rules will kneel and bow.

            Moreover, discrimination on the grounds of gender was also recognized, as articulated by Justice Dorner, as infringing the right to dignity under Basic Law: Human Dignity and Liberty:

The degradation of a human being violates his dignity. There is no reasonable way of construing the right to dignity, as stated in the Basic Law, such that the degradation of a human being will not be considered a violation of that right.

Indeed, not every violation of equality amounts to degradation, and therefore not every violation of equality violates the right to dignity. Thus, for example, it was held that discrimination against small political parties as opposed to large parties, or against new parties as opposed to old parties, violates the principle of equality … Notwithstanding, such infringements of the principle of equality, which have even led to the disqualification of Knesset laws, did not express degradation, and so they also did not involve a violation of human dignity.

This is not the case with certain types of discrimination against groups, including sex discrimination, and also racial discrimination. Such discrimination is based on attributing an inferior status to the victim of discrimination, a status that is a consequence of his supposedly inferior nature. This, of course, is inherently degrading to the victim of discrimination (HCJ 4541/94 Alice Miller v. Minister of Defence [20], 132).

36.       We reviewed the provisions of several laws, and presented case law that was issued by the courts: case law that interpreted laws, case law that found a place between gaps in the laws, and case law that stands on its own two feet. The common denominator of all such provisions of law and case law was – and is – the pressing social need to recognize the equal status of women and to act for the reinforcement of equality. The laws are “progressive” laws, as is the case law.

37.       From a bird’s eye view, the laws and case law may appear somewhat strange, and may to present nothing but a tautology. I assume that the day will come when children will chuckle at the statutes and case law in which adults now take pride.

For example, women are entitled to equal wages “for the same work” as provided in sec. 2 of the Male and Female Workers (Equal Pay) Law (above, para. 33). Is the law not stating the obvious? Is packing 500 boxes a day different depending on whether it is performed by a man or a woman? Was the legislature’s intention not clear and self-evident even before it was articulated? Would we not have derived what the legislature says from the principle of equality itself? The same applies to the provisions of the Equality of Opportunities in Labour Law. Does the law not say what we have long-known – that women must not be discriminated against merely because they are women? This goes for these two laws and for all of the other laws. All of these laws – these and others as well – were only intended to eliminate unlawful acts of discrimination that put down roots in our society. The legislature’s instructions were only intended  to declare to the world which norms do – and should – prevail here. The explicit words of the law were intended to declare the need to uproot wrongful conduct to which we have become accustomed, and to place women where they should have been from the outset. Indeed, slowly but surely, the legislature has created new norms – norms that were perhaps not self-evident – but essentially the laws were intended to declare norms, and thereby establish them in the life of the law and of society. And incidentally to establishing the norms, the legislature – rightfully – deemed fit to set sanctions for their violation, all as provided in each and every law.

Laws that we presented and case law that we reviewed appear to us as points of light. The light is the light of equality, equality between women and men, for all intents and purposes. If we step from one point of light to the next, the doctrine of equality will reveal itself in all its glory.

From equality to representation

38.       Reuven and Shimon are competing in a tender for a position in the civil service. Levi, chairman of the tender committee, is a close friend of Reuven. Levi would like to help Reuven, and tips the tender in Reuven’s favor. Shimon was discriminated against in the tender. The tender was not performed on terms of equality and should be annulled. This act of discrimination is a one-time act, although it may repeat itself – and indeed does so – often, and under a variety of circumstances. This is particular discrimination. It would also be particular discrimination if we were to change the details and assume that the competitors are Reuven and Leah. If Levi tips the tender in favor of Reuven merely because he is Reuven’s friend, this too would be particular discrimination.

The discrimination that we are now discussing is different. The discrimination of a woman – as a woman – is generic discrimination. Thus, for example, in the above example, if Levi were to prefer Reuven because he is a man – or decide against Leah because she is a woman – this would be generic rather than particular discrimination. Another example of generic discrimination is discrimination against someone because of his skin color or race. Generic discrimination, as has already been said, is discrimination that critically injures a person’s dignity. A person does not control his sex (female or male), his skin color (black, yellow or white), or the wholeness of his body (disabled or not). In his lifetime, a person does all that he can to acquire wisdom and knowledge, to be a good, generous person, affable and honest, and yet he is rejected in favor of others merely for such characteristics over which he has no control – a genetic or other characteristic.

At this point it would be proper to examine the words of Justice Brennan in Frontiero v. Richardson (1973) [31], at pp. 685-87:

It is true, of course, that the position of women in America has improved markedly in recent decades. Nevertheless, it can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena. . .

Moreover, since sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate “the basic concept of our system that legal burdens should bear some relationship to individual responsibility”.... And what differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society. As a result, statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members. (citations omitted) (footnotes omitted).

39.       Discrimination against women has plagued society from time immemorial, for hundreds and thousands of years. Such ongoing discrimination has created certain lifestyles and thought patterns that have put down deep roots, so much so that it sometimes seems – by way of hyperbole – that they created a kind of mutation in our genetic system. In any event, we all know that it is impossible to uproot these patterns overnight. Moreover, ongoing discrimination over the course of so many years has created layers of discrimination – one on top of another – and thus we have cumulative discrimination – discrimination in the attire of a quasi-status. For example, clearly a woman cannot serve in an Air Force aircrew (the Alice Miller case [20]); clearly a woman is unsuited to serve as a member of a religious council (the Shakdiel case [18]); clearly a woman is unsuited to be included in the assembly that selects a city rabbi (the Poraz case [11]), clearly a woman should retire at age 60, while a man can retire at 65 (the Nevo case [17]); clearly a woman is not suited “to work after 4 P.M.” (the Plotkin case [28]); clearly a female flight attendant’s track to promotion does not lead – like that of a male flight attendant – to the rank of purser but only less (LabA 33/3-25 Flight Attendant Crew Committee v. Edna Hazin [30]); clearly a woman’s right to vote in meetings of an agricultural cooperative society is inferior to that of her husband (CA 84/64 Beit Hananya Ltd. v. Friedman [21]); clearly a woman cannot be the “head of household” in an agricultural cooperative society, and receive the associated “right to work” that is “reserved for men only” (CA 89/85 Beit Herut – Workers’ Cooperative for Cooperative Agricultural Settlement Ltd. v. Glassman [22]); and many more.

40.       Reformers have taken a number of routes to uproot such wrongful thinking patterns that afflict us. One of the routes was through imposing a duty to give representation to women in various entities. Generic discrimination – such as discrimination against women – inherently raises the representation issue. In generic discrimination – as distinct from particular discrimination – it is as if the person who is being discriminated against “represents” the discrimination of an entire class. The dark-skinned is discriminated against merely because of his dark skin; the woman is discriminated against merely because she is a woman. This means that the black man and the woman each “represents” discrimination against their class: he – all blacks; she – all women. To rectify this situation, the reformers in our case chose the route of imposing a duty to arrange for representation of women in workplaces, on boards of directors, etc. The same issue (but not it alone) gave rise to the institution of affirmative action, which also derives from the deficient “representation” of women.

41.       The provisions of secs. 15A of the Appointments Law and 18A of the Government Companies Law may serve as fitting examples of imposing norms that mandate ensuring proper representation of women in the civil service and on the boards of directors of Government Companies, and of adopting affirmative action to achieve the goal of proper representation (see above, paras, 22 and 23). Section 15A of the Appointments Law was originally intended to apply to the civil service, but as we have seen, the legislature extended the scope of its application to the majority of National Insurance Institute employees, as well. As for sec. 18A of the Government Companies Law, the legislature saw fit to extend its scope as well, and applied it to statutory corporations (see above, paras. 22-24). To complete the picture, we will add that the Government decided, pursuant to its authority under sec. 3 of the State Service (Appointments) Law, 5719-1959, to apply sec. 15A(a) of the Appointments Law to all of the local authorities (in a decision dated August 14, 1997, published in the Official Gazette on September 2, 1997, No. 4563 for the year 5757, on page 5392). The aforesaid are not the only relevant examples.

We find a somewhat esoteric example in the Cinematograph Films Ordinance, 1927, under which the Censorship Board reserved at least one spot for a woman (in accordance with sec. 3 of the Ordinance, a censorship board will be established consisting of the chairman and several additional members “of whom one at least shall be a woman”). However, more important in our case are the laws that were enacted in recent years. Thus, for example, sec. 4 of the Senior Citizens Law, 5750-1990, provides for the establishment of a public council for senior-citizen issues, and the law prescribes (in sec. 4(b)) that “at least one third of the council members shall be women”. Section 48 of the National Health Insurance Law, 5754-1994, requires the establishment of a national health insurance council. Section 49 establishes the number of council members and the bodies to be represented therein, and sec. 49(b) further determines:

Composition of the Health Council   

49.       (a)        ……………….

(b)       At least one quarter of the panel of members appointed from among the government employees shall represent both sexes. The panel of representatives in a body represented by three or more, shall include representation of two sexes [sic].

 (The words “two sexes” at the end of sec. 49(b) seems to have been a lapsus calami, and the intention most probably was, “both sexes”).

Section 1 of the National Battle against Road Accidents Law, 5757-1997, establishes a “steering committee” for the National Road Safety Authority. Section 11(a) of the law determines that the steering committee shall be composed of 7 members, and sec. 11(c) further determines that “the steering committee shall give proper expression to the representation of members of both sexes, insofar as possible in the circumstances of the matter”.

Moreover, sec. 13 of the same law establishes an advisory committee for the National Road Safety Authority. The advisory committee is composed of 21 members, and as prescribed by sec.13(b): “At least eleven of the committee members shall be women.”.

The National Authority for Certification of Laboratories Law, 5757-1997, establishes a seven-member council, and in accordance with sec. 8(b)(3), the representatives of the Minister of Finance and Minister of Science on the council “shall be members of the sex that is not properly represented at such time in the entire council.” The law also establishes a thirty-member “advisory committee” and, in accordance with sec.16(c) thereof, “at least one half of all of the advisory committee’s members shall be women”.

Section 9 of the Authority for the Advancement of the Status of Women Law, 5758-1998, establishes an authority for the advancement of the status of women, and mandates the appointment of a 35-member “advisory committee”. Section 9(a) of the law lists various entities that will be represented in the committee, and sec. 9(e) prescribes that “in the composition of the members that will be appointed under subsecs. (b)(2) and (3) there will be representation of each of the sexes of at least forty percent of the members” (subsecs. b(2) and (3) speak of 18 representatives of the 35 members). It should be added that in accordance with sec. 3 of the law “the duties of the authority shall be performed by the director [the term is in the female gender – ed.] of the authority”, and we cannot assume that the use of the female gender also encompasses the male gender.

Finally, on June 30, 1998, Amendment (no. 11) to the Companies Ordinance (Representation of both Sexes on a Board of Directors of a Public Company) Law, 5758-1998, was published. Following the amendment sec. 96B(a) of the Companies Ordinance [New Version], now states (the amendment is emphasized):

Appointment and qualifications        

96B.    (a)        At least two public directors shall serve on the board of directors of a company, elected by the company and certified by the committee that they met the qualifications set in this title. If one of the positions of a public director is vacated in a company in which all of the members of the board of directors are of one sex, at least one of the directors of the public shall be of the other sex.

                                    (b)       …

42.       In conclusion, we reviewed a number of women’s “representation provisions” in the new Israeli legislation. Such representation provisions do not speak only of themselves; they speak of a new, hitherto unknown zeitgeist in the Israeli legal system. There is a fresh breeze blowing through the laws of Israel. Elsewhere in our opinion (see above, para. 37), we compared provisions of the law that pertain to equality for women and the prohibition to discriminate against them to points of light. We connected all of the points of light and behold, an Israeli legal doctrine revealed itself – a doctrine whose power extends beyond the particular provisions of law. Connecting the points of light has created a kind of critical mass, and thus a doctrine of far-reaching consequences was created. Just as in the case of that doctrine, so it is in the case of the doctrine now revealed in the present matter: the provisions of the law that pertain to the proper representation of women are also like points of light. Connect the points of light and you will see that a kind of critical mass is created that also gives rise to a doctrine or, at the very least, a quasi-doctrine. If you prefer, a doctrine in formation has revealed itself to us.

Let us consider it. The representation provisions that we reviewed in the legislation vary; the representation provisions in one law are not identical to the representation provisions in another law. However, absolutely all of the representation provisions, despite their differences,  individually constitute a crystallization of the same substance and expresses the same basic principle. That principle is: granting proper representation to women and men in public entities as a need required by the principle of equality. Each one of those provisions reflects and reveals, in its defined and delineated areas, the same basic principle of equality.

43.       Against the background of all of the aforesaid, the question that now presents itself is: what is the doctrine or quasi-doctrine that we can derive from the law and case law? To what extent is a duty imposed on the authorities to bring about proper “representation” of women? We will now turn to this and other related questions.

The representation of women as an element of the discretion of a competent authority

44.       The following is how man was created on the sixth day of the Creation (Genesis 1:27):

So God created man in His own image; in the image of God He created him; male and female He created them.

This is what the book of the generations of Adam tells us (Genesis 5:1-2):

This is the book of the generations of Adam, in the day that God created man, in the likeness of God made He him; male and female created He them, and blessed them, and called their name Adam, in the day when they were created.

Both the male and the female were created – created together – in the image of God. The woman and the man are one: she too is Adam, he too is Adam, they are both Adam.

That is how it was and how it should have been; that is how it is and how it should be; that is how it will be and how it should be. Let us remember and heed.

45.       The question whether a situation of inequality and discrimination has been created will be examined – as we have seen – according to the results and not according to the intentions. Good intentions are insufficient to bring about a nice day, and insufficient to be of any help if the result obtained is one of discrimination. Indeed, the phenomenon that is revealed to us is one in which women are absent from public entities to an extent and in circumstances that the laws of statistics would be hard pressed to explain without introducing the element of discrimination into the equation. In order to avoid misinterpretation we will quickly add: we did not – and will not – say that discrimination is the sole factor that led to the situation in which there is only one woman (on leave, and in circumstances in which it would have been reasonable to assume that she would not return to work) out of nine deputy directors in the National Insurance Institute. However, it is hard to be disabused of the impression that discrimination played a role in this phenomenon – directly or indirectly – and perhaps even a considerable role. We do not mean special discrimination – certainly not conscious discrimination – within the National Insurance Institute. As we said above, we are concerned with generations-long discrimination, of strata of discrimination that accumulated on top of one another over many years.

46.       We have extensively discussed the principle of equality and its application in the relationship between men and women. We discussed various provisions of law that mandate equal treatment of women. We further discussed provisions of law that mandate giving representation to women in various public entities. Legislation and case law together have shown us the way, and the way is that of the doctrine that everything that can be done must be done to arrange for “appropriate representation” of women in public entities. In other words, when making a selection or an appointment in public entities, the competent authority must consider the proper representation of women, or perhaps we should say, the representation of members of both sexes.

We have learned time and again that an authority’s discretion is fed by two tributaries. The source of one tributary is the law under discussion:  the purpose of the law, the principles of the law, and the particular provisions of the law. The source of the other tributary is the legal system as a whole: the purpose of the legal system, its principles and values, and the doctrines that sustain it (see, for example, the Poraz case [11],  328ff). The National Insurance Law speaks of establishing a management for the National Insurance Institute, and outlines the boundaries of its powers. Provisions that pertain to the management are framework provisions, skeletal provisions, “dry” provisions. However– like the other provisions of the National Insurance Law, and like all the laws of the State – they are immersed up to their necks in the tributary of principles, values and doctrines. These principles, values and doctrines of the legal system – or perhaps we should say: of Israeli society as viewed through the lens of the law – constitute an integral part of the genetic code of all the provisions of the law and all the case law of Israeli law. The rules of the law do not live without them. It can even be said, as we have said elsewhere, that such “credo” principles of the legal system precede the particular rules of the law (see: CFH. 7325/95 Yediot Aharonot Ltd. v. Kraus [23] p. 71ff ; HCJ 5503/94 Segal v. Knesset Speaker [24] p. 562; CA 3798/94 A. v. B. [25] 165ff).

Having learned all the above, we shall add that a sincere, honest effort to position women at the same starting point as men, and vigorous actions to give proper representation to women in the civil service are duties intertwined with the general doctrine that requires proper expression for the representation of both sexes in the civil service. The meaning of this is that in each appointment or selection in the civil service, the competent authority must do its best to realize the requirements of the doctrine.

47.       What is “proper representation”? A review of the statutes that speak of proper representation shows us that they are not uniform. Some of the provisions determine rigid models of proper representation, and some determine flexible ones; some determine that among the members of a certain entity there will be a certain percentage of women and some do not determine a certain percentage. Among those that do determine a specific percentage, the provisions of the laws are not identical. My colleague Justice Mazza addressed this issue of “proper representation”  in the Women’s Network case [1], saying, inter alia, as follows (pp. 527-528):

I accept that the term “proper representation” — with regard to the representation of both sexes in the composition of a board of directors — must be construed in accordance with the special circumstances of the case. This means that we are not speaking of fixing equal quotas, or any quotas at all, for the representation of either men or women; but we are speaking of giving proportional representation to each of the sexes, and the proper degree thereof should be determined in accordance with the character, the purposes and the special needs of the Government or statutory corporation under discussion, and according to the distribution of the candidates of both sexes found to be suitable for the specific office that is sought. It is possible that the conclusion that derives from this premise is that in the absence of proven circumstances that justify giving greater weight to members of one sex, ‘proper expression’ should be interpreted to require equal representation for men and women. However, in general and specifically, we must take care not to instill an approach that holds that giving any representation to women may be deemed giving women proper representation [emphasis original – M.C.].

In the present matter, there is no need to delve any deeper in order for us to reach the conclusion that women are not fairly represented in the National Insurance Institute’s Management. Prior to Marom’s appointment, there were eight active deputy directors in the management, including one female deputy director on leave (in circumstances in which it could have been assumed that she would not return to work). Moreover, as we have seen, the Minister was explicitly told that the representation of women in the National Insurance Institute’s Management was inappropriate, and he is presumed to have known so himself. Even if we were to say that representation of less than one half is “proper representation” – and we do not say so – in our case we are indisputably far, very far, from proper representation. Let us say it explicitly: women have no representation in the National Insurance Institute’s Management.

48.       What conclusion does this require? Is it that the Minister has a case-law duty to appoint a woman for the office of IT Deputy? We believe that this is not necessarily the case. Even if we were to say that the Minister has a duty to do whatever can be done – under the circumstances of each and every case – to give fair representation to women in the National Insurance Institute’s Management, it would be improper to add that the aforesaid duty must translate itself – in our case – into an actual appointment of a woman for the office of IT Deputy. Had the legislature constrained us by a legal provision requiring the appointment of a woman, then needless to say, we would heed the order. However, we are now wandering in the field of principles and doctrines. Trees of discretion grow in this field, and we must strictly examine whether everything that was required was done or omitted in this area.

After all the above, let us say that in the circumstances that were revealed to us, we would have expected to hear some explanation from the Minister for the failure to grant representation to women; viz., in the present matter, a justification for not appointing a woman for the office of IT Deputy. We did not hear an explanation or a justification, and we are unaware of any proper explanation or justification.

49.       What duty does the case law impose upon the Minister? All would concede that it is, first and foremost, to enquire whether there is a woman in the Israeli workforce who is suitable to fill the office of IT Deputy. What did the Minister do in this regard? We have the answer in his affidavits. Thus, for example, he says in para. 6 of his affidavit of July 1, 1998:

Of the various candidates who were proposed for the position after the National Insurance Institute Director searched for candidates, inter alia, in manpower firms and among the professionals, and the Director  of the Ministry of Labor and Social Welfare, who has a strong background in this area was also asked to recommend candidates, I was not offered a suitable female candidate for the position who had qualifications similar to those of Respondent no. 2.

And in para. A of the reply affidavit dated July 20, 1998:

The searches that were performed by the National Insurance Institute Director, which were intended to find the person most suited to the position (not necessarily a male candidate) – failed to identify a suitable female candidate.

Our request to produce documents on the searches that were performed was answered as follows:

There are no documents that attest to a search for a suitable female candidate. If a suitable female candidate had been found, her candidacy would have been considered in a pertinent manner and perhaps even with a certain advantage (para. D of the reply affidavit dated July 20, 1998).

What do we learn from all this? That truth be told, there was no search for a female candidate for the office of deputy director as required. In any event, no proper search was performed. Indeed, the statement that the “search that was performed by the National Insurance Institute Director … failed to identify a suitable female candidate” is too  general and vague to fulfill the requirements of an efficient, serious search for a suitable female candidate. The Minister did, indeed, consider the candidacy of two women – including Ms. Ranel who proposed her own candidacy – but did not find them suitable for the position. However, that does not suffice.

Rabbi Isaac said: If a man says to you: I have labored and not found – do not believe him. If he says, I have not labored but have found – do not believe him. If he says, I have labored and found – you may believe him (TB Megilla, 6b).

50.       In the Women’s Network case [1], our colleague Justice Mazza articulated the scope of the duty in a search for a suitable candidate, and we can do no better than to quote him in his own words (ibid, 529):

…the burden of proof that in the circumstances of a specific case it was not possible to appoint a woman rests with the appointing minister. This burden is not a light one. In order to discharge it, the appointing minister must show that he examined the possibility of appointing a suitable female candidate, but discovered that, in the circumstances of the case, this was impossible. Even his duty to make such an examination is not simple. In order to discharge it, the minister must adopt reasonable measures to locate a suitable female candidate. The scope of these measures depends on the type of appointment in question. When he must appoint a director from among the employees of his ministry, the examination must encompass all the female employees in his ministry who prima facie have the basic qualifications required. If he must choose the candidate from among the general public, his examination must encompass those sectors of the population where a suitable female candidate is likely to be found. This does not mean that the minister must seek, at any cost, to locate an unknown female candidate who has the necessary qualifications. But he also will not have done his duty by making a “formal” search for any female candidate. In order to do his duty properly, he must adopt reasonable measures designed to lead to the discovery and appointment of a suitable female candidate. For this purpose, it is not impossible that the Minister will seek assistance not only from his assistants and advisors, but also from external public bodies (such as business guilds, professional associations and societies, trades unions, the universities, women’s organizations, etc.) and of professional authorities (such as the Adviser on the Status of Women in the Prime Minister’s Office), who have in their possession the relevant information which he needs and who may recommend candidates with the qualifications required for the various appointments.

As we can see, in attempting to achieve proper representation of women in public entities, a real duty is imposed on the competent authority to search for suitable female candidates. In our case, the Minister of Labor was unable to lift the burden imposed on him to search, and further initiate a search in order to achieve proper representation of women in the National Insurance Institute’s Management.

51.       In the present case, we heard the following from the Petitioner with respect to women in the computer industry:

Since the beginning of the 1990s, women have made up 50% of undergraduate and graduate students in computer science. Since the 1970s, there has been a constant increase in the rate of women in system programming and analysis, from 20% in 1972 to 37% in 1992. Despite the discrimination from which women in the field of programming and computers suffer, including through discriminatory bars to managerial positions, in 1997, women managers were found in 45% of the companies and plants in the software industries.

The Petitioner based these statements on A. Rosen, Male Culture and the Status of Women in Technology [37]..

The Petitioner further submitted two affidavits containing many names of potential women candidates who could have easily been located – women candidates from the civil service, public service, and even the private sector – all women who hold senior positions in the computer industry. In principle, all of them could have successfully filled the office, if only their candidacy had been properly considered. And if the Minister sought to find a candidate specifically suited to manpower (“HR management”) issues, he no doubt could have found many more women candidates.

            He turned this way and that way, and he saw that there was no man… (Exodus 2:12).

That was Moses’ way of finding out whether or not there was anyone around. He looked to the right, he looked to the left, and then:

                        He struck the Egyptian and hid him in the sand (loc. cit.).

A person who turns this way and that way, does not do enough. As we can see, this is what happened on the following day:

            When he went out the next day, he saw two Hebrews fighting; and he said to the one who was in the wrong, “Why do you strike your fellow Hebrew?” He answered, “Who made you a ruler and judge over us? Do you mean to kill me as you killed the Egyptian?” Then Moses was afraid and thought, “Surely the thing is known.” (ibid,  13-14).

We, too, were not convinced that the Minister turned this way and that to find a woman. Will the Minister indeed say to us:

Which my soul sought yet, but I did not find; one man out of a thousand I found, but a woman among all these I did not find. (Ecclesiastes, 7:28)?

Indeed, each generation and its scholars, each generation and its female leaders. These days we will not accept such a statement as appropriate . If that is the Minister’s answer – and that was, indeed, his answer – we will say: we find the answer unacceptable. We were not convinced that a real search was carried out, a true search, to find a woman for the contemplated office. Had a tender been published for filling the office, there probably would have been women – not only one – who would have proposed their candidacy. Since a tender was not published, the Minister is required to do the utmost to reach such women, to examine their qualifications, and to compare their qualifications among themselves and between them and Marom.

52.       To complete and clarify we will add that the burden of investigation and consideration of potential women candidates in the Women’s Network case [1] was different, in terms of its (immediate) legal source, from the burden imposed on the Minister of Labor in our case. In the Women’s Network case [1], the issue addressed was sec. 18A of the Government Companies Law and the proper interpretation of that provision (see above, paras. 23, 47 and 50). The law itself imposed a substantive duty of “proper representation”, and from such duty the Court derived a secondary duty to act in order to find a suitable woman candidate. The case before us is different in that the substantive duty imposed on the Minister is a case-law duty to consider the issue of proper representation of women in public entities, and to do what can be done to give them proper representation. Such a case-law duty inherently states a secondary duty that is imposed on the Minister, which is a positive duty to gather information (“to investigate and search, to gather information from administrative authorities or other entities and perhaps even seek the opinions of experts” (the Euronet case [3], 424, per Justice Zamir). To sort out the relevant information, ascertain its credibility, and give it suitable weight (the Euronet case [3], 423-426). Thus, the duty we are discussing is an autonomous being. While, it relies – in one way or another – on various provisions of law and on the basic principles of the legal system, ultimately it stands on its own two feet, as a duty from the case law: it is born of the case law and it lives within the case law.

53.       There are tenders and there are “quasi-tenders”, and the duties imposed on the publisher of a quasi-tender are very similar to the duties imposed on the publisher of a tender (see and compare: the Israel Shipyards case [13] 767ff). The duties that apply to the Minister in the search for women candidates to fill the position of IT Deputy resemble the duties that apply to the publisher of a quasi-tender. It is not enough to sit back and do nothing. The duty is a positive one: to climb the tree, squeeze between the branches, put out a hand and search for the fruit; not merely to stay on the ground and wait for the ripe fruit to fall into your lap. The Minister must guide himself like Moses guided the spies when he sent them to tour the land of Canaan:

            And Moses sent them to spy out the land of Canaan, and said unto them: Get you up here into the South, and go up into the mountains; and see the land, what it is; and the people that dwelleth therein, whether they are strong or weak, whether they are few or many; and what the land is that they dwell in, whether it is good or bad; and what cities they are that they dwell in, whether in camps, or in strongholds; and what the land is, whether it is fat or lean, whether there is wood therein, or not. And be ye of good courage, and bring of the fruit of the land and now the time was the time of the first-ripe grapes. (Numbers 13:17-20).

If this is carried out, the woman will most certainly be found.

54.       We will add the obvious which is that the manner of assessment of the female – and male – candidates must be thorough, rational and pertinent. General assessments of candidates are insufficient. The  assessments must be based on methodical, pre-determined tests, and on a pertinent weighting of each and every candidate. That is how we will be able to avoid the preconceptions that have clung to us, to all of us; that is how we will be able to do justice for each female and male candidate.

55.       In conclusion: once the office of IT Deputy in the National Insurance Institute was vacated, and once it was learned that there were only men in the National Insurance Institute’s Management,  a case-law duty was imposed on the Minister to search – to diligently search – for a woman with suitable qualifications to fill that office. We do not find that the Minister fulfilled that duty.

The remedy

56.       When appointing Marom to the office of IT Deputy, the Minister failed to fulfill his duty to seriously consider the principle of proper representation of women. The question is only what conclusion should we draw from this?

If it were now shortly after the appointment, we might have revoked the appointment and returned the matter for consideration by the Minister in the proper, required manner. We will not do so for these two cumulative reasons: First, some four-and-a-half months of the six-month trial period of this appointment have already elapsed. Although Marom himself did not appear before us – and consequently did not argue on his own behalf – we will appoint ourselves his guardians and say that it would be unjust if we were now to ignore those months as if they never existed. Indeed, the “fait accompli” rule is not relevant to Marom, but in examining the competing interests it seems that we will not do justice if we send him home. Second, and pursuant to the first reason: Marom is now in a trial period and no one knows what will transpire at the end of the period. Thus we said to ourselves, let us add the good to the useful and accompany the trial period with an act that ought to have been carried out from the outset and was not performed as required.

57.       Thus, we rule as follows: for the present – and until the expiration of the trial period – Marom will be able to continue in his position as IT Deputy. However, over the following months, the Minister must perform his duty according to the doctrine – the duty to act for proper representation of women: to make efforts and act diligently to find suitable women candidates to fill the position of IT Deputy at the National Insurance Institute; to bring the proper women candidates before the committees, and thereafter decide who will be the IT Deputy. Needless to say, until the Minister’s final decision, Marom will not be granted a permanent appointment to the office of IT Deputy, and the trial period shall continue until the final decision (unless it is decided to terminate it earlier for whatever reason). In this sense, we make the order absolute. Under the circumstances, there will be no order for costs.

 

Justice I. Zamir:

I concur.

 

Justice D. Beinisch:

I concur.

 

Decided in accordance with the opinion of Justice M. Cheshin.

Given this day, 19 Av 5758 (August 11, 1998).

 

 

 

 

 

HCJ 9134/12

 

 

 

Petitioners:                1. Prof. Moshe Gavish

                                    2. Prof. Mordechai Segev

                                    3. Prof. Asa Kasher 

 

                                                            v.

 

Respondents:                        1. The Knesset

                                    2. Minister of Finance

                                    3. Attorney General

                                    4. Technion – Israel Institute of Technology

 

Applicant to Join as Additional Petitioner or Amicus Curiae: Prof. Ruth Ben-Israel

           

Applicant to Join as Amicus Curiae:  Association of Law in the Service of the Elderly

 

Attorneys for the Petitionrs and the Applicant to join as Additional Petitioner or Amicus Curiae:  Shoshana Gavish, Adv.

Attorney for Respondent 1: Gur Bligh, Adv.

Attorney for Respondent 2-3: Hani Ofek, Adv.

Attorney for Respondent 4: Gilat Vizel-Saban, Adv; Yael Hadani, Adv; Adam Fish, Adv.

Attorney for the Applicant to join as Amicus Curiae:  Carmit Shai, Adv.

 

 

 

The Supreme Court sitting as High Court of Justice

 

Opposition to order nisi.

Position of the Attorney General of February 9, 2105

Response of the Petitioners of March 22, 1025

 

25 Heshvan 5775 (November 18, 2014)

 

Before: President M. Naor, Deputy President E. Rubinstein, Justice E. Hayut, Justice Y. Danziger, Justice N. Hendel, Justice U. Vogelman, Justice D. Barak-Erez

 

President M. Naor:

 

            Section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Retirement Age Law or the Law), provides that "the age at which an employee can be required to retire because of age is 67 for a man and for a woman". The issue before the Court in this petition is whether that statutory provision is constitutional.

 

Background

 

            The Normative Stuation prior to enactment of the Retirement Age Law

 

1.         The accepted view in Israel, as in many other countries, is that a person should be permitted to retire from work and rest from daily toil in old age. That approach is expressed in the creation of retirement arrangements (HCJ 104/87 Nevo v. National Labour Court, IsrSC 44 (4) 749, 754 (1990) [English: http://versa.cardozo.yu.edu/opinions/nevo-v-national-labour-court] (hereinafter:  the Nevo case)). "Retirement age" is generally defined in the framework of those arrangements. The term "retirement age" can have several possible meanings. One meaning is pension-qualifying age, namely the age at which a person is entitled to retire voluntarily and receive the full pension that he has accumulated during his life (hereinafter: qualifying age). Another meaning is a mandatory retirement age. That is, the age at which an employee can be required to retire because of his age (hereinafter: mandatory retirement age),  which is the focus of this petition.

 

2.         The Retirement Age Law was enacted in 2004. Before its enactment, there was no statute in Israeli law that regulated the issue of retirement generally, or that of mandatory retirement age or qualifying age. At that time, mandatory retirement age was gounded in collective agreements, the by-laws of pension funds, or in the statutory provisions that governed certain groups of workers in the economy, like state employees, judges and career soldiers (sec. 18 of the Civil Service (Retirement) Law [Consolidated Version], 5730-1970 as in the version then in force (hereinafter: the Civil Service (Retirement) Law); the Civil  Service (Retirement) (Continued Employment of an Employee over the Age of 65) Regulations (hereinafter: the Civil Service (Retirement) Regulations); section 13(a)(1) of the Courts Law [Consolidated Version], 5744-1984; section 13 of the Israel Defence Forces (Permanent Service) (Retiremant) Law [Consolidated Version], 5745-1985). The employment of workers not governed by a collective agreement or a specific law came to an end at the customaary retirement age, if that was expressly or impliedly agreed between them and their employer. Similarly, such workers could resign upon reaching the customary retirement age and receive severance pay (sec. 11(e) of the Severance Pay Law, 5723-1963.(For details of the arrangements prevailing prior to the enactment of the Retirement Age Law, see: Dan Shnit, “Mandatory Retirement – A Reassessment,” 32 HaPraklit 507, 514-518 (1980) (hereinafter: Shnit).

 

3.         In order to complete the picture, it should be noted that the majority of collective agreements and legal provisions at that time prescribed that the retirement age was 65 for a man and 60 for a woman. Nevertheless, over the years itcame to be understood that requiring women to retire at an earlier age than men was discriminatory (see: Nevo, p. 770; HCJ 6845/00 Niv v. National Labour Court, IsrSC 56 (6) 663 (2002) (hereinafter: the Niv case)). That led to the enactment of the Male and Female Workers (Equal Retirement Age) Law, 5747-1987 [English: http://www.ilo.org/dyn/natlex/docs/ELECTRONIC/6028/97936/F2079498565/ISR6028.pdf] which provided that if a collective agreement prescribed a retirement age that was lower for a woman than for a man, the woman would be entitled to retire at any age between her retirement age and that prescribed for a man (sec. 2 of the statute, later repealed by the Retirement Age Law). Since then, 65 became the normal retirement age for both men and women. (See: HCJ 6051/95 Recant v. National Labour Court, IsrSC 51 (3) 289 (1997) (hereinafter: the Recant case).

 

Recommendations of the Netanyahu Commission

 

4.         In 1997, the Minister of Labour & Welfare and the Minister of Finance appointed a public commission headed by Justice (Emeritus) Shoshana Netanyahu to examine the issue of retirement age (hereinafter: the Netanyahu Commission). The Commission was tasked with examining the issue of retirement age, including its social and economic aspects, as well aso the question of standardizing the retirement age for men and women. The Commission availed itself of the services of an external consultancy firm, as well as information from western countries, comprising statistical data, professional articles, judgments and opinions. Representatives of various professional groups in Israel and a variety of experts appeared before the Commission. The Commission also used demographic forecasts and simulations that were prepared by experts in regard to the implications of a change in the retirement age for the social security system. In addition, the public at large was invited to express its opinions on the issues on the agenda.

 

5.         The Commission submitted its recommendations in July 2000 (Report of the Public Commission for the Examination of the Retirement Age) (hereinafter: the Netanyahu Commission Report). The Commission's recommendations related to various aspects of the retirement age issue. We shall focus on the Netanyahu Commission's opinion on the matter of mandatory retirement age -- the age at which it is possible, as stated, to require an employee to retire because of age. The Commission studied the possibilities of changing the mandatory retirement age, including the possibility of abolishing it altogether. Due to various factors, including the opposition of certain organizations, the Commission decided not to go so far as other countries had in completely abolishing a mandatory retirement age, and instead, adopted a course of "gradual progression, while studying the implications of the proposed change to retirement age" (ibid., p. 6). Consequently, having regard to the data on the ageing of the population and the need to increase the participation of older people in the workforce, the Commission recommended a gradual increase in the customary retirement age (from 65 to 67). In addition, the Commission believed that the mandatory retirement age should be grounded in primary legislation and should apply to all workers. Commission member Prof. Frances Raday took the minority view that a more significant increase in the mandatory retirement age would be appropriate. However, she was also of the opinion that it should not be abolished altogether. This,  because such a step might lead to personal competence criteria for persons wishing to continue working after the normal retirement age, and such criteria might demean and infringe the dignity of those workers. In addition, Prof. Raday believed that abolishing the mandatory retirement age would make it difficult to plan manpower in the workplace.

 

6.         In March 2003, the Government adopted the recommendations of the Netanyahu Commission, making the necessary adjustments to accomodate the passage of time and the changes in the economy since the recommendations were made. Pursuant to the Government's decision, the Retirement Age Bill, 5764-2003 (S.H. 64), was submitted, proposing a comprehensive arrangement for retirement age in Israel, and the required legislative amendments. The Explanatory Notes to the Bill explained the need for legislation in this area:

 

            The ongoing increase in life expectancy, together with the increase in the ratio between the number of elderly in Israeli society and the general population, are not phenomena that are unique to the State of Israel and they exist in most countries of the developed world. These phenomena have led many developed countries, like the USA, to make changes to their prevailing retirement age arrangements in order to adapt the labor market and social security systems (both state and non-state systems) to those changes.

 

            … In July 2000, the Public Commission [the Netanyahu Commission – MN] submitted its recommendations on the said issues, among them te following:… the  mandatory retirement age, namely the age at which an employee may be required to retire because of age, should be raised from 65 to 67. The said rise should be implemented gradually, at the rate of one year every three years, so that it will extend over six years… The Commission believed that it would be appropriate to ground its recommendations in primary legislation, in view of the comprehensive and innovative character of recommended arrangement,and in order to ensure equality among all the residents of the State of Israel".

 

7.         On January 7, 2004, the Bill passed on second and third readings in the Knesset, and on January 18, 2004, the Retirement Age Law, 5764-2004 was published.

 

The Law that is the Subject of the Petition

 

8.         The Retirement Age Law regulates various aspects of retirement age. The stated purpose of the Law is to prescribe standard rules with regard to retirement age, including raising it gradually. Thus the purpose clause of the Law states:

 

Purpose	1.	The purpose of this Law is to establish standard rules with regard to retirement age, including raising it gradually, while applying the said rules both in regard to entitlement to the benefits granted to whomever has attained the said age, and in regard to entitlement to the benefits granted to whomever has not yet attained the said age, until he does attain that age.

 

9.         To achieve that purpose, the Law lays down several provisions concerning the mandatory retirement age and regarding the qualifying age. Section 3 of the Retirement Age Law provides that the age at which a person is entitled to retire voluntarily (the qualifying age) is 67 for a man and, subject to certain provisions, 62 for a woman. Section 5 of the Law provides that upon certain conditions, a person can retire voluntarily at an earlier age. Section 4 of the Law, around which this petition herein revolves, embodies the mandatory retirement age. It provides:

 

Mandatory retirement age

4.

The age at which an employee can be required to retire because of age is 67 for a man and for a woman (in this Law – mandatory retirement age).

 

This provision of the Law does not lay down a mandatory obligation to retire from work at the age of 67, but provides that an employer can reauire that an employee retire because of age. Alongside this, section 10 of the Retirement Age Law provides that an employee and employer can agree that the retirement age will be different from the mandatory retirement age. Among other things, it can be agreed that the retirement age will be higher than the mandatory retirement age:

 

Priority	10. (a)	The provisions of this Law [the Retirement Age Law - MN] shall apply notwithstanding as provided in any agreement.
	(b)	Notwithstanding the provisions of subsection (a), it may be provided by agreement –
		(1)	that the age at which an employee can be required to retire from work because of age shall be higher than mandatory retirement age;
		(2)	that the age at which an employee is entitled to receive benefits because of his retirement from work on account of his age even before he has attained retirement age shall be less than early retirement age, provided that the employer shall bear the cost deriving therefrom in full; the Minister may authorize an entity other than the employer to bear all or part of the cost provided in this paragraph instead of the employer; notice of such authority as aforesaid shall be published in the Official Gazette.
	(c)	The provisions of this Law shall apply unless otherwise provided in another Law (emphasis added – MN).

 

Developments in Case Law after Enactment of the Retirement Age Law: the  Weinberger Decision

 

10.       After the Retirement Age Law was enacted, an appeal was filed in the National Labour Court that asserted that the obligation to retire at the age of 67 was unconstitutional (LabA (National) 209/10 Weinberger - Bar Ilan University (December 6, 2012) (hereinafter: the Weinberger case)). In the alternative, it argued that the Retirement Age Law, according to its interpretation, provides that if an employee asks the employer to continue working after the age of 67, the employer is obliged to give relevant consideration to that request on an individual basis. The National Labour Court (per Judge S. Davidow Motola, President N. Arad, Judge O. Verbner and Public Representatives S. Habshush and Y. Belizovsky concurring) allowed the appeal in part. The court stated that the mandatory retirement arrangement infringed constitutional rights, and such being the case, an examination should be made as to whether the infringement complies with the conditions of the Limitation Clause. The court further held that, prima facie, mandatory retirement is intended for a proper purpose, but there are questions as regards its compliance with the requirement of proportionality. In that context, the court addressed whether it might be proper to adopt a different retirement arrangement that would, mitigate the serious infringement of elderly workers' rights to the extent possible. Nevertheless, the court held that it did not intend to rule on the constitutional issue:

 

            Let us first say that although this court has recognised in its case law, and still recognises, the problems involved in fixing a uniform compulsory retirement age by virtue of a statutory provision, we have decided to leave the ruling on the constitutional issues to the Supreme Court…

 

            Without derogating from the this court’s competence to try constitutional issues, including in the course of indirectly challenging a statute, regard should be had to the fact that jurisdiction to try a direct challenge to the Law – in a way that will apply to everyone, not merely to the direct parties to the dispute – is vested in the Supreme Court, and it is the appropriate and proper instance forexercising constitutional review of a law of such broad scope that has such overall social and economic importance" (paras. 43 and 63).

 

Prenthetically, I would remark that the court will not always deem it appropriate to award relief in the event of an indirect challenge, in circumstances where the party has refrained from presenting the alleged flaw for judicial review by a direct challenge (see and compare: CFH 1099/13 State of Israel v. Abu Pariah, paras. 8-12 (April 12, 2015); LAA 7363/09 Mishan Centre Ltd v. Tel Aviv – Jaffa Municipality, para. 8 (March 2, 2010) and the references there; on the Labour Court's competence to entertain an indirect challenge, see: section 39 of the Labour Court Law, 5729-1969, which refers, inter alia, to section 76 of the Courts Law [Consolidated Version], 5744-1984 regarding incidental jurisdiction). The Labour Court had power not to deal with the constitutional issue. The question whether the Labour Court exercised its discretion properly in those proceedings is not before us, and in any case does not need to be decided.

 

            As for the matter of the Retirement Age Law's interpretation, the Labour Court stated that section 10 of the Law makes it possible to agree to a retirement age that is higher than the mandatory retirement age. Consequently, an employee is entitled to put it to the employer that he wishes to continue working even after accepted retirement age. Alongside that, the Labour Court held that the employer, for his part, must exercise due, individual discretion in answer to the request. The Labour Court enumerated a series of factors that the employer must take into account, like the personal circumstances of the employee, his entitlement to pension and verall concerns of the workplace. The Labour Court emphasised that those factors are not a closed list, and that in any event the employer does not have to continue employing the worker after the hearing. The Labour Court stated, obiter dictum, that according to its interpretation, the mandatory retirement arrangement might permit the employer to require an employee to retire because of his age only in circumstances in which ending the employment involves "leaving on pension", namely "only in circumstances in which there is an overall pension arrangement that regulates the pension age, in the scope and by virtue, of which the employee is entitled 'to leave on pension'" (ibid., para. 71). Nevertheless, it was held that in the circumstances of the case before the Labour Court, it was unnecessary to definitively decide the issue since the appellant there was in any case ending her employment in the framework of a comprehensive pension arrangement, and as part of a collective agreement that gave her tenure. As to the crux of the matter, the Labour Court found that in the case before it, the employer had not summoned the appellant to a hearing or examined the appellant's request to continue working after retirement age. The Labour Court therefore allowed the appeal in part, in the sense that the employer was ordered to pay the appellant compensation of NIS 50,000.

 

            Further to the judgment in Weinberger, in which it was held as aforesaid that this Court should consider the constitutionality of the mandatory retirement arrangement, the petition before us was filed.

 

The Petitioners

 

11.       The first and second Petitioners are members of the academic staff of the Technion – Israel Institute of Technology (hereinafter:  the Technion). The first Petitioner, Prof. Gavish, is a full professor in the Faculty of Medicine of the Technion. The second Petitioner, Prof. Segev, is a full professor in the Faculty of Physics of the Technion and also holds the title of Distinguished Professor. According to para. 16(b)(1) of the collective agreement between the Technion and several other employers and the employee organizations (hereinafter: the Pensions Constitution"), senior academic staff members must retire at the age of 68 (one year over the mandatory retirement age prescribed in the Law). Nevertheless, according to the procedures of the Technion, a full professor, whose academic achievements so justify will, on attaining mandatory retirement age, be appointed as an emeritus professor of the Technion. An emeritus professor may continue teaching, mentoring and research work, albeit on a limited scale in comparison with the work of a tenured professor of equivalent rank. According to the Pensions Constitution, Prof. Gavish reached retirement age in October 2014 and could be appointed an emeritus professor. Prof. Segev is expected to reach retirement age in 2027 but because of his senior title – Distinguished Professor –the procedures of the Technion will permit him to extend his service as a tenured senior staff member with an appointment, subject to the necessary approvals.

 

            The third Petitioner, Prof. Kasher, took early retirement and is now Emeritus Professor of the Chair in Professional Ethics and Philosophy of Practice, and Emeritus Professor of philosophy at Tel Aviv University.

 

            As will be explained below, the Petitioners assert that section 4 of the Retirement Age Law which, as aforesaid, grounds the possibility of compelling an employee to retire because of his age, is void.

 

Applications to Join the Petition

 

12.       After the petition had been filed, Prof. (Emeritus) Ruth Ben-Israel filed an application to join the petition as a Petitioner or, in the alternative, as amicus curiae. Prof. Ben-Israel served for many years as a full professor at Tel Aviv University. Over the years she published extensive, important research in labour and social security law, such as on collective agreements, the right to strike and equal opportunities at work. Because of her activity in those years, Prof. Ben-Israel has achieved academic recognition, a variety of degrees, and even the Israel Prize. Prof. Ben-Israel applied to join the proceedings in order to support the petition and, according to her, to put her knowledge and expertise on the issues before the Court. Prof. Ben-Israel stated that she has been researching the phenomenon of discrimination against the elderly in the labour market for years, and she regards herself as being at the forefront of the fight against age discrimination. Prof. Ben-Israel also filed an affidavit in which she detailed the difficult personal experience that she had undergone when she had to retire from the senior academic staff of Tel Aviv University.

 

13.       Another application to join was filed by the Association of Law in the Service of the Elderly. The purpose of the Association is to promote the rights of the elderly in Israel, and in order to achieve that purpose, it operates at the public and legal level. The Association's main battle is against discrimination against the elderly because of their age (a phenomenon which is called ageism). The Association also applied to support the Petitioners' pleas.

 

The Proceedings Before Us

 

14.       There were two oral hearings on the petition. At the end of the first hearing, an order nisi was issued, directing the Respondents to show cause why section 4 of the Retirement Age Law should not be declared void. It was further decided that opposition to the order nisi would be heard before an extended bench, and that the applications to join would be referred to it (President A. Grunis, and Justices E. Arbel and D. Barak-Erez, judgment and decision of February 12, 2014). Other relief that was sought in the petition was struck out by consent of the Petitioners, while reserving their right to raise them in regard to the stricken issues.

 

15.       On November 18, 2014,  a hearing was held before an extended bench of seven Justices. At the end of the hearing, we asked the Attorney General to submit his opinion on the rule established by the National Labour Court in the Weinberger case, and we ordered that the other parties could reply to his opinion. Finally, it was decided that a judgment would be handed down after the notices and replies had been received (Deputy President M. Naor and Justices E. Rubinstein, E. Hayut, Y. Danziger, N. Hendel, U. Vogelman and D. Barak-Erez, decision of November 18, 2014).

 

The Parties' Main Arguments

 

            The Petitioners' Arguments

 

16.       According to the Petitioners, work is a means for their self-fulfilment, health and longevity. Their only wish is to continue working regularly, without the Technion taking into account the retirement age fixed in the Law or in the Pensions Constitution. The Petitioners believe that an employee's age cannot serve as a criterion for his abilities or skills, and that giving weight to that datum is discriminatory and demeaning, contrary to the Employment (Equal Opportunities) Law, 5748-1988 (hereinafter: the Equal Opportunities Law), and also inconsistent with the relevant case law of the Supreme Court. The Petitioners therefore argued that the mandatory retirement arrangement seriously infringes their constitutional right to equality and to freedom of occupation to an extent that is greatr than required. They assert that the biological retirement model can be replaced by a functional retirement model, based on individual competence criteria. According to them, functional retirement presents a lesse infringement of the rights of elderly employees because it is bases the end of the empoyment relationship on a relevant foundation – the worker's performance. The Petitioners emphasized that in Israel there are already individual competence tests, such as those conducted for state employees, and there is therefore no particular difficulty in making use of them in the framework of an overall retirement arrangement. The Petitioners also argued that the harm caused to them exceeds the benefit that derives from the Law. Finally, the Petitioners explained that, in their view, the interpretation of the National Labour Court in the Weinberger case, according to which an employer is obliged to give individual consideration to the request of an employee to continue working after the accepted retirement age, does not make the mandatory retirement arrangement constitutional.

 

            In view of the above, the Petitioners asked that we strike down section 4 of the Retirement Age Law, and consequently order that para. 16 of the Technion's Pensions Constitution is  void, and other relief. Thereafter, on the recommendation of this Court, the Petitioners focused the petition exclusively on the constitutionality of sec. 4 of the Retirement Age Law. 

 

The Respondents' Answers

 

17.       The first Respondent is the Israel Knesset. The second and third Respondents are the Minister of Finance and the Attorney General (hereinafter referred to together as: the State), while the fourth Respondent is the Technion.

 

18.       According to the State, a mandatory retirement arrangement passes the constitutionality test. The State first asserted that the issue of retirement age is a multifaceted economic and social issue, and that judicial intervention in might have far-reaching implications for the Israeli economy. The State went on to argue that it is doubtful whether mandatory retirement infringes constitutional rights because in certain respects, it benefits workers. First, it helps increase job security until retirement age. Second, it permits the entry of new workers into the labor market. Finally, it saves workers having to undergo constant review of their competence in individual competence examinations. The State also asserted that in various countries, a variety of retirement arrangements, including mandatory retirement arrangements, has been introduced. The State emphasized that the various different retirement models have advantages and disadvantages, and that in such circumstances the legislature's decision to choose the mandatory retirement model is not illegitimate. In addition, the State asserted that since the enactment of the Retirement Age Law, the participation of the elderly in the labor market has increased; that the rate of elderly workers in Israel is among the highest in the world; and that the average, actual retirement age is also higher in comparison with other countries. Consequently, the State argued that the Retirement Age Law has not proven detrimental to the situation of elderly workers.

 

19.       As regards the interpretation of the Law laid down in the Weinberger case, in its reply of February 9, 2015 the State did not dispute that an employer is obliged to consider an employee's request to continue working after reaching retirement age, but emphasised that that did not mean that the employer must extend the employee's employment. In addition, according to the State, it is unnecessary to rule on the scope and nature of the factors that the employer must consider in that regard. In order to demonstrate this, the State noted that it doubted whether the employer should, for example, be required to consider the extent of an employee's entitlement to pension. According to the State, obliging the employer to consider that factor might deter employers from employing candidates who are not likely to accrue sufficient pension rights by the time of reaching the mandatory pension age.

 

20.       The Knesset asked to join the State's arguments, and emphasised three matters: first, according to the Knesset, it is not at all clear that the arrangement infringes the rights of elderly persons. According to the Knesset, an arrangement of compulsory retirement because of age might be to the benefit of elderly workers and safeguard their dignity. Secondly, it argued that support for the arrangement existing in Israel can be found in comparative law, especially in Europe. Finally, the Knesset asserted that ruling on the question of retirement age is complex and has far-reaching implications for the labour market, and that being the case, the decision should be made by the legislature.

 

21.       In its response, the Technion, adopted the position of the State as regards the constitutionality of the mandatory retirement arrangement. According to the Technion, the Retirement Age Law adopted the conclusions of the Netanyahu Commission, which had considered the matter and all the factors relevant to the issue of retirement age. Consequently, according to the Technion, there is no justification for judicial intervention in the Law. The Technion further contended that the advantages of a mandatory retirement arrangement are of particular importance in the context of collective agreements, like the Pensions Constitution, which constitute a "package deal", comprising long-term employment alongside a constant increase in wages, on the one hand, and a predetermined time for the labor relationship to end, on the other hand. The Technion asserted that arrangements of this type are especially important in institutions of higher education, in which academic freedom should be maintained. It argued that abolishing the mandatory retirement age would negatively affect collective agreements that are for the benefit of workers, and also harm the Technion's administrative and budget flexibility. Finally, the Technion argued that the interpretation of the mandatory retirement arrangement made in the Weinberger case expresses a balanced solution, suitable to the labor relationship, and makes it unnecessary to abolish the mandatory retirement age.

 

The Response of the Petitioners and Prof. Ben-Israel

 

22.       In their response of September 15, 2014 the Petitioners and Prof. Ben-Israel presented arguments counter to those of the Respondents. It was first argued that the consideration that a mandatory retirement age promotes job security might be relevant only to employees who enjoy tenure and not workers who are employed under personal contracts. In this connection it was asserted that nowadays the majority of workers in the economy are not governed by employment arrangements that incorporate job security, and the mandatory retirement arrangement is of no advantage to them. In addition, it was argued that the Respondents' position with regard to the need to give the employer tools to plan the workforce at the workplace is not persuasive because it was not raised in other relevant contexts. Thus, for example, section 5 of the Retirement Age Law enables, as aforesaid, an employee to retire voluntarily before reaching the qualifying age. However, although the possibility of early retirement also impairs certainty, it was never argued that it makes it difficult for the employer to manage the workplace. The Petitioners further argue that individual competence tests do not demean the employee since, according to them, the requirement of continuing conformity of a worker to the needs of his job is a relevant requirement. Finally, the Petitioners again warned that the solution outlined by the National Labour Court in the Weinberger case "perpetuates and aggravates discrimination against the elderly because it gives it a color of constitutionality" (ibid., para. 26).

 

Discussion and Ruling

 

23.       The question for us to decide is the constitutionality of section 4 of the Retirement Age Law. It is acknowledged that the Court undertakes judicial review of the Knesset's primary legislation with cautious restraint. "In its legislation, the Knesset gives expression to the will of the people's elected representatives" (HCJ 7717/13 Colian v. Minister of Finance, para. 8 (October 2, 2014)). Therefore, "the Knesset's legislation enjoys the presumption of constitutionality, which imposes a substantial burden on whoever argues against it" (HCJ 6304/09 Lahav - Israel Organization of the Self-Employed v. Attorney General, para. 62 (September 2, 2010) (hereinafter:  the Lahav case)). A review of the constitutionality of a statute is of narrow scope, which necessitates a delicate balance between the principles of majority rule and the separation of powers, on the one hand, and the constitutional protection of human rights and the fundamental values of the Israeli regime, on the other hand (HCJ 2605/05 Academic Centre for Law and Business, the Human Rights Division v. Minister of Finance, IsrSC 63 (2) 545, 593 (2009) [English: http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-...  (hereinafter: the Prison Privatization case)).

 

24.       Special care is necessary when legislation is involved that delineates wide-ranging social and economic policy (HCJ 1715/97 Israeli Bureau of Investment Managers v. Minister of Finance, IsrSC 51 (4) 367, 386, 388-389 (1997); Lahav, paras. 62-64; Prison Privatization, p. 593; HCJ 4885/03 Israel Association of Poultry Farmers Cooperative Agricultural Society Ltd v.  Government of Israel, IsrSC 59 (2) 14, 60 (2005) [Engish: http://versa.cardozo.yu.edu/opinions/israel-poultry-farmers-association-... HCJ 4948/03 Elhanati v. Minister of Finance, IsrSC 62 (4) 406, 467-468 (2008) (hereinafter:  the Elhanati case). As Justice D. Beinischsummarised in HCJ 4769/95 Menahem v. Minister of Transport, IsrSC 57 (1) 235, 263 (2002) (hereinafter: the Menahem case):

 

            … It has been emphasised many times in this Court's case law that in applying the constitutional criteria prescribed in the Limitation Clause to the legislation of the Knesset, the Court will act with judicial restraint, caution and moderation. This is particularly so when the legislation under constitutional review is in the area of the economic market, which involves broad social and financial aspects. In these spheres there can often be several possible objectives and courses of action. Deciding among them is often based on an evaluation that involves uncertainty, and that involves forecasts and professional considerations that are not always within the expertise of the Court. An incorrect evaluation of the situation may lead to instability or even upheaval in the State economy. Consequently, the authorities responsible for economic policy – the executive branch and the legislative branch – should be given broad discretionary space, since they determine the overall policy, and bear the public and national responsibility for the State economy. Furthermore, the choice between the various different objectives and courses of action in the economy may derive from social-economic perspectives that, despite being different and even contradictory, may all coexist within the framework of the Basic Laws.

 

This statement should also guide us in reviewing the constitutionality of the Retirement Age Law. The issue of retirement is a complex one, that combines both economic and social aspects (LabA (National) 56/196-3 Dead Sea Works Workers Council v. Sharabi, IsrLC 30 283, 313 (1997)). Retirement age itself is a complex, multifaceted subject. It is not without reason that there are several different models in the world in this sphere (for a comprehensive survey of the different models, see Pnina Alon-Shenkar, “Ending Mandatory Retirement: Reassessment,” 35 Windsor Rev. Legal & Soc. Issues 22 (2014) (hereinafter: the Shenkar case); I shall address this again below). Of the possible solutions, the Israeli legislature has decided to adopt a collective model in the Law, which prefers the criterion of age to a specific review of the individual (see, for example: HCJ 7957/07 Sadeh v. Minister of Internal Security, para. 11 of the opinion of Justice E. Hayut (September 2, 2010) (hereinafter referred to as "Sadeh"); HCJ 4487/06 Kelner v. National Labour Court, para. 2 of the opinion of Justice E. Rubinstein (November 25, 2007) (hereinafter: referred to as HCJ Kelner)). This decision results from the conclusions of the Netanyahu Commission, which examined all the aspects of the issue under review. In such circumstances, although the Court will not refrain from exercising constitutional review, it will do so with extreme care (the Prison Privatization case, pp. 593-594; for criticism of certain aspects of this approach, see: Barak Medina,

“‘Economic Constitution,’ Privatization and Public Finance: A Framework of

Judicial Review of Economic Policy,” in Zamir Book on Law, Society and Politics 5, 583, 648-652 (Yoav Dotan and Ariel Bendor (eds), 2005) (Hebrew)).

 

25.       As customary, the review of an argument against the constitutionality of a statute is carried out in stages. First, it is necessary to determine whether the statute infringes a human right grounded in a Basic Law. If the answer is negative, constitutional review comes to an end. If the answer is affirmative, it becomes necessary to examine whether the infringement is lawful, in accordance with the conditions of the Limitation Clause. This expresses the approach prevailing in our legal system, according to which constitutional human rights are relative. Consequently, they can be limited if there is justification for so doing. If the infringement is lawful, the constitutional review ends. If the infringement is unlawful, to the Court must determine the consequence of that unconstitutionality (see and compare: HCJ 7052/03 Adala - The Legal Center for Arab Minority Rights in Israel v. Minister of the Interior, IsrSC 61 (2) 202, 281-282 (2006) [English: http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... (hereinafter: the Adala case); HCJ 2334/02 Stenger v Speaker of the Knesset, para. 5 of the opinion of President A. Barak (November 26, 2003); HCJ 2254/13 Samuel v  Minister of Finance, para. 8 of the opinion of Justice N. Hendel (May 15, 2014)).

 

            We will now proceed to a review of the constitutionality of the mandatory retirement arrangement.

 

Does Compulsory Retirement by Reason of Age infringe the Right of Equality Deriving from the Constitutional Right to Human Dignity?

 

26.       The Petitioners' main argument is that the Retirement Age Law unlawfully infringes the right of equality that derives from the constitutional right to human dignity. Israeli case law has long recognized the right to equality as a fundamental right of prime importance (see: HCJ 1213/10 Nir v. Speaker of the Knesset, paras. 11-12 of the opinion of President D. Beinisch (February 23, 2012) and the numerous authorities there (hereinafter: the Nir case); Aharon Barak, Human Dignity: The Constitutional Right and its Daughter Rights, vol. II 685-688 (2014) (Hebrew); Itzhak Zamir and Moshe Sobel, “Equality before the Law,” 5 Mishpat Umimshal 165, 165-170 (5760) (Hebrew)). "Equality is a foundation of social existence. It is one of the pillars of the democratic regime" (HCJFH 4191/97 Recant v. National Labour Court, IsrSC 54 (5) 330, 362 (2000) (hereinafter:  HCJFH Recant). The right to equality has also been recognized as a constitutional right under the intermediate model that also includes discrimination that does not involve humiliation, provided that it is closely associated with human dignity (HCJ 6427/02 Movement for Quality Government in Israel v. Knesset, IsrSC 61(1) 619 (2006) (hereinafter:the Yeshiva Students case)). The other side of the equality coin is the prohibition of discrimination. There are clear reasons for the prohibition of discrimination: discrimination leads to the creation of a sense of oppression, frustration and social ostracism (Nevo, p. 760). It "… completely erodes human relations…" (HCJ 7111/95 Center for Local Government v. Knesset, IsrSC 50 (3) 485, 503 (1996)).

 

27.       Equality – and the prohibition of discrimination that it entails – are also necessary in labor law ( the Recant case, pp. 340-341; HCJ 1268/09 Zozal v. Israel Prison Service Commissioner, para. 13 of the opinion of Justice E. Hayut (August 27, 2012) [English: http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi... (hereinafter: as the Zozal case); Ruth Ben-Israel, “Occupational Equality, Where from and Where To?" 6 Labour Law Yearbook 85 (1996) (Hebrew)). "This area is 'asking for trouble' as regards prohibited discrimination" (the Elhanati case, p. 450). Consequently, in labor law there is extensive legislation aimed at promoting employment equality (see, for example: Female and Male Workers Equal Pay Law, 5756-1996; the Employment of Women Law, 5714-1954). A central law that reflects the importance of equality in the context of labor law is the Equal Opportunities Law. That statute prohibits an employer from discriminating among employees or among those seeking employment on the basis of their sex, sexual orientation, personal status, pregnancy, fertility treatment, IVF treatment, being parents, their age, race, religion, ethnic group, country of origin, views, political party, or their service in reserve duty, their call for service in reserve duty or their anticipated service in reserve duty (section 2(a) of the Equal Opportunities Law). An exception thereto can be found in section 2(c) of the statute which provides: "Differential treatment necessitated by the character or nature of the assignment or post shall not be regarded as discrimination under this section”.

 

28.       Discrimination by reason of a person's age was already prohibited in certain contexts in Israel at the end of the 1950s (see, for example: sec. 42(a) of the Employment Service Law, 5719-1959; HCJFH Recant, p. 367-369), but only in recent years do we find growing has public and legal awareness (HCJ 10076/02 Rosenbaum v. Israel Prison Service Commissioner, IsrSC 61 (3) 857, 872 (2006) [English: http://versa.cardozo.yu.edu/opinions/rosenbaum-v-israel-prison-service-c... (hereinafter: the Rosenbaum case) and the references  cited there). The primary occurence of discrimination on account of age is discrimination against "the elderly" or "the old", referred to as “ageism” (Israel (Issie) Doron, “Ageing and Anti-Ageing in Israel’s Supreme Court Rulings,” 14 HaMishpat 65 (5771) (Hebrew); Israel Doron and Einat Klein, “The Inappropriate Arena? Discrimination because of Age in the Eyes of the District Labor Court,” 12 Labour, Society and Law 435 (2010) (Hebrew); Israel (Issie) Doron, Old Age in the Temple of Justice: The Old and Ageism in the Case Law of the Supreme Court, (2013) (Hebrew) (hereinafter: Doron)). Discrimination because of age "… usually reflects the entrenchment of stereotypes with regard to the limitations of the body and the mind of the older person. Usually this has no rational or objective basis” " (the Rosenbaum case, p. 871). Such discrimination is not unique to Israel. It exists in the majority of the Western world. Some explain its growing prevalence by the trend of population ageing, which has led to an increase in the number of elderly who constitute part of the general workforce (Pnina Alon-Shenkar, “The World Belongs to the Youth: On Discrimination against Senior Workers and Mandatory Retirement,”, in Liber Amicorum Dalia Dorner Book 81, 82-84, Shlomit Almog, Dorit Beinisch & Yaad Rotem (eds), (5769) (Hebrew) and the comparative research cited there (hereinafter:  Shenkar – The World Belongs to the Youth); see also Batia    Ben-Hador, Aliza Even,      Efrat            Appelbeum,   Hadas Dreiher,          Daphna          Sharon, Yinon Cohen, Guy Mundlak, “Assessing            Employment Discrimination          in         Hiring by Correspondence  Studies,”  11 Labour, Society and Law 381, 395 (2005); Equality at Work: the Continuing Challenge, Global Report under the Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work, International Labour Conference, 100th Session 2011 (Report I(B)), p. 49). It is against that background that the prohibition of age discrimination was added to the Equal Opportunities Law in 1995.

 

29.       Discrimination against a person because of age in the field of employment may be expressed at different stages of the labor relationship between the employee and the employer. This was addressed by the National Labour Court in the Weinberger case:

 

            Discrimination against an elderly person in employment is expressed at all the stages of the relationship between him and the employer or potential employer, from the hiring stage… through determination of the terms of employment and limited promotion options… to the stage of employment termination ”as a catalyst for the employee's dismissal or retirement” (para. 27 of the opinion of Judge S. Davidow-Motola).

 

Age discrimination can also occur upon retirement. To date, the Court has assumed that a compulsory retirement age can be fixed, but that it must be done equally. Consequently, it has been held that the determination of a retirement age that is younger than customary for a certain type of worker without substantive justification is unlawful (see, for example: HCJFH Recant, pp. 364-370; Rosenbaum; Sadeh; Zozal; Nevo; Niv; LabA (National) 1313/04 Asa v. El Al Israel Airlines Ltd, para. 22 of the opinion of Judge S. Zur (March 23, 2006) (hereinafter: the Asa case); LabA (National) 14705-09-10 Muzafi v. Bank Leumi Ltd, paras. 28-31 of the opinion of Judge V. Wirth Livne (May 16, 2012) (hereinafter:  the Muzafi case); LabA (National) 203/09 The Agudath Israel Kindergarten Network v. Boussi, para. 41 of the opinion of Judge R. Rosenfeld (October 2, 2011); LabA (National) 1414/01 Dead Sea Works Ltd. v. Nissim, IsrLC 40 193 (2004) (hereinafter: the Dead Sea Works case); cf. HCJ 6778/97 Association for Civil Rights in Israel v. Minister of Internal Security, IsrSC 58 (2) 358 (2004) [English: http://versa.cardozo.yu.edu/opinions/association-civil-rights-v-minister... (hereinafter: the Association for Civil Rights case)). However, the question of whether requiring a person to retire from work at a predetermined, uniform age is discriminatory per se has not yet been decided in our law. In any event, hard and fast rules have not been laid down as to whether compulsory retirement because of age amounts to the infringement of a constitutional right.

 

30.       The question whether compulsory retirement because of age infringes equality has been described in the case law of this Court as a complex one, on which comparative law is not  unanimous (Rosenbaum, p 875; also see and compare: Sadeh, para. 11 of the opinion of Justice E. Hayut). In the Recant case, various opinions were advanced on the subject, but no binding precedent was set. Justice I. Zamir was of te opinion that age discrimination can find expression in the workplace, inter alia, in the very requirement to retire at some particular age (ibid., pp. 341-342). On the other hand, in the same case, Justice M. Cheshin stated that Israeli law does not prohibit fixing of a compulsory retirement age for workers, and that fixing such an age is not "at the present time" regarded as age discrimination (ibid., p. 336). President D. Beinisch, for her part, stated that "… according to the norms currently accepted in Israel, the fixing of a compulsory retirement age, which is within the accepted norm both in legislation and in collective labor agreements, is not unlawful discrimination but a permitted, relevant distinction because of age…" (ibid., p. 374). Justice D. Beinisch went on to say that "new winds are blowing in our society, as in other societies, and future development cannot be ruled out that will undermine the point of departure in regard to the proper compulsory retirement age and perhaps even in regard to compulsory retirement because of age in general" (ibid.).

 

31.       Opinions are also divided in the legal literature. There are those who assert that retirement based on the employee's chronological age infringes his dignity (see, for example: Ruth Ben-Israel,  “Retirement Age in light of the Principle of Equality: Biological or Functional Retirement,” 43 Hapraklit 251 (1997) (Hebrew) (hereinafter: Ben-Israel); Shnit, p. 509). Others believe that there are concrete circumstances in which a substantive distinction is involved (for example, Sharon Rabin-Margalioth, “Age Discrimination in Israel: A Power Game in the Labor Market,”, 32 Mishpatim 131 (5762) (hereinafter:Rabin-Margaliot) (Hebrew); Sharon Rabin-Margalioth, “The Elusive Case of Employment Discrimination: How Do We Prove Its Existence?”  44 Hapraklit 529 (1999) (Hebrew)).

 

32.       The question whether requiring an employee to retire from work at a uniform age infringes the right to equality is indeed a venerable one. In order to analyze the matter, I am willing to accept that compulsory retirement because of age – as it appears in the Retirement Age Law – does infringe the right to equality that derives from the constitutional right to human dignity, as I shall explain. . The Law under review, according to its wording and purpose, is sweeping, and comprehensive. It distinguishes as regards retirement between young employees and elderly ones without any direct link to their competence or work capacity (see: Zozal, para. 24 of the opinion of Justice S. Joubran). It applies to all employees in the economy, without distinguishing among different types of occupation, types of employee or terms of employment. In such circumstances, individuals might understandably be harmed (HCJ Kelner, para. 2 of the opinion of Justice E. Rubinstein; Shnit, pp. 508-509; Rabin-Margalioth, pp. 144-147; cf. the position of Justices M. Cheshin and D. Beinisch in  the Recant case, supra). Furthermore, it is acknowledged that “The principle of equality does not operate in a social vacuum. The question whether a certain case involves discrimination between equals, or whether it merely involves different treatment of different people, is decided on the basis of the accepted social outlooks” " (HCJ 721/94 El Al Israel Airlines Ltd v. Danilowitz, IsrSC 48 (5) 749, 779 (1994) [English: http://versa.cardozo.yu.edu/opinions/el-al-israel-airlines-v-danielowitz, para. 4, per Dorner J]). While in the past the prevailing view was that there is a close connection between age and performance, it is now clear that reality is more complex and the effect of age on body and mind differs from one person to another (see: The Netanyahu Commission Report, p. 6). In this regard the saying goes that "the only generalization that can be made about the elderly is that one cannot generalize" (Doron p. 28). Consequently, making decisions on the basis of attribution to the elderly group is, as aforesaid, likely to cause injustice to the individual. By way of comparison, that was also the opinion of the Supreme Court of Canada (McKinney v. University of Guelph [1990] 13 C.H.R.R. D/171 (S.C.C) (hereinafter: the Mckinney case; see also Dickason v. University of Alberta, [1992] 2 S.C.R 1103 (hereinafter:  the Dickason case); Harrison v. University of British Columbia [1990], 3 S.C.R. 451; Stoffman v. Vancouver General Hospital [1990] 3 S.C.R. 483).

 

33.       I therefore believe that an infringement of equality is involved. It is acknowledged that not every infringement of equality amounts to an infringement of human dignity. However, in the case before us, we are not concerned with a trivial infringement. Discriminating against an elderly person is harsh and outrageous, and it even "involves an element of humiliation and infringement of his dignity as a person" (HCJFH Recant, p. 366; see also Ruth Ben-Israel and Gideon Ben-Israel, “Senior Citizens: Social Dignity, Status and Representative Organization,” 9 Labor, Society and Law 229 (5762) (Hebrew))). Added to this are the implications associated with making a person retire against his will. As Justice G. Bach stated in Nevo:

 

             Retirement from work has many negative personal, mental and social consequences. Frequently, a person who retires from his employment because of his advancing age feels that he is no longer a participant in the productive sector of society. He feels that he has been deprived of the satisfaction of working and receiving compensation for his labour. This feeling is also strengthened by society's attitude, which in many cases treats him as an "old man" who no longer serves any useful purpose. The situation is more acute in our day, where average life expectancy has increased and people remain healthy even at an advanced age. For this reason, the number of years have increased in which an older person, of sound body and mind, is forced, despite his capabilities, to leave his activities in the labour market and gaze, frequently in frustration, on the progression the accordingly of life's activities in which he can no longer take part  (ibid., p. 755 [http://versa.cardozo.yu.edu/opinions/nevo-v-national-labour-court at para. 5B(1)]).

 

And as Justice E. Hayut stated in Zozal:

 

            An older-person’s retirement is very significant, and carries weighty consequences for that person’s life, in financial and social terms, and no less with respect to the person’s self-image, given the insult inflicted on a person who is capable and wishes to continue working " (ibid., para. 15 [http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi...).

 

Also apt in this regard is the statement of Justice I. Zamir in  the Recant case:

 

            Discrimination against a person because of his belonging to a group, for example discrimination because of race, religion or sex, infringes the person's dignity. It is demeaning.… Such is also the case in respect of discrimination concerning retirement age. A person who was active and effective, involved and useful is suddenly, in his own eyes and the eyes of those around him, made irrelevant. The harm generally caused to someone who has to retire from work at an age that is fixed as a general one for mandatory retirement is aggravated when a person belongs to a group of workers that has to retire at an earlier age (ibid., p. 342).

 

Although the statement was made in regard to compulsory early retirement, it is in my opinion also relevant here. Indeed, work is not merely a source for dignified minimal existence, but also a source for self-fulfillment and social fulfilment. Naturally, the greater the place that work occupies in an individual's life, the greater the harm caused as a result of compulsory retirement because of age. Having regard to the nature and extent of the harm, I am willing, as aforesaid, to accept that such harm amounts to an infringement of human dignity. This approach is consistent with opinions that have recently been expressed in the National Labour Court, according to which compulsory retirement because of age infringes constitutional rights (Weinberger, para. 57 of the opinion of Judge S. Davidow Motola; LabA (National) 107/05 Kelner v. Civil Service Commissioner, para. 7 of the opinion of President S. Adler (February 27, 2006) (hereinafter:  the Kelner case), and compare HCJ Kelner, para. 7 of the opinion of Justice E. Rubinstein; see further: the Asa case, para. 22 of the opinion of Judge S. Zur; the Muzafi case, paras. 16-17 of the opinion of Judge V. Wirth Livne).

 

34.       Even the Respondents do not wholeheartedly dispute that compulsory retirement because of age might harm the elderly who can and want to continue working. Nevertheless, according to them, that harm is negligible when considered against the advantages of a predetermined, uniform chronological retirement age. The Respondents assert that a mandatory retirement age protects the elderly against demeaning competence tests and helps promote job security. Therefore, they assert, weighing the interests of elderly workers as a group leads to the conclusion that a mandatory retirement arrangement protects, rather than harms, employees. These are serious arguments. However, I believe that they do not nullify the harm to the individual. In similar circumstances – in which various aspects of the same right clashed with each other – I stated:

 

            We are therefore concerned with a clash between two constitutional rights that are designed as fundamental. How can this clash be resolved? The solution is not one right “winning” over the other. Indeed, at the constitutional level, the clash cannot be completely resolved, as though “letting a hundred flowers blossom” … The solution will be found at the practical – sub-constitutional – level… A. Barak considered this clash between the subordinate rights of human dignity:

 

                        “The conflict between the subordinate rights does not lead to changing the bundle of rights that expresses the whole of human dignity. Indeed, the solution to the conflict will be found at the sub-constitutional level. At that level it will be determined if a sub-constitutional norm […] that has limited one subordinate right of human dignity in order to protect another subordinate right of human dignity is constitutional. The criterion for the determination of that constitutionality is the rules of proportionality”…

 

            That statement is also apt with regard to the sub-subordinate rights that clash in the instant case. One right does not retreat in the face of the other but a balance is determined between them at the sub-constitutional level. If it is found that the solution chosen by the legislature infringes the constitutional right of the student to obtain an education, then that infringement will only be constitutional if it is proportionate. Therefore, as my colleague Justice E. Arbel has stated, it is necessary to examine whether the statute complies with the criteria of the Limitation Clause… (HCJ 3752/10 Rubinstein v. Knesset, paras. 4-5 of my opinion (September 17, 2014); and compare the opinion of President A. Grunis there).

 

So too in the case before us. The protection of the individual against harm caused by requiring him to retire against his will does not retreat in the face of the necessary protection of the elderly as a group, but a balance must be struck between them in light of the criteria of the Limitation Clause (also see and compare: HCJ 42/94 Manco Food Import & Marketing v. Ministry of Trade and Industry (September 3, 1994) (hereinafter: the Manco case). The Respondents further asserted that the Petitioners have not proven that compulsory retirement because of age is makes there situation worse in comparison with that of young workers. In support of that argument, the Respondents adduced data showing that the participation of the elderly in the workforce is growing and that the actual retirement age in Israel is among the highest in the member states of the Organisation for Economic Cooperation and Development (hereinafter: the OECD). In my opinion, those data indicate less harm to the individual, but it appears that they are not sufficient to neutralize the harm. An employee's very obligation to retire against his will is likely to harm his dignity and his sense of competence, even if the age at which he is obliged to retire is relatively high (cf. HCJ 8665/14 Desta v. Knesset, paras. 58-60 of my opinion (August 11, 2015) (hereinafter: the Desta case)).

 

            In view of the foregoing, the point of departure for our further discussion is that a constitutional right, namely the right to equality that derives from the constitutional right to human dignity, is infringed. However, I would first say that the conclusion that I have reached is that the infringement meets the requirements of the Limitation Cclause and it would therefore be inappropriate to invalidate the provision of the Law that is under review.

 

The Criteria of the Limitation Clause

 

35.       Our assumption that the obligation of a person to retire because of his age infringes the right of equality that derives from the constitutional right to human dignity is not the end of the line in respect to the validity of the Retirement Age Law because it is still necessary to examine whether the infringement is lawful (Elhanati, p. 467; Nir, para. 17 of the opinion of President D. Beinish). The constitutionality of the infringement is examined in accordance with the conditions of the Limitation Clause, according to which constitutional rights are not to be infringed, unless by a law that befits the values of the State of Israel as a Jewish and democratic state, which is intended for a proper purpose and in a way that does not exceed what is necessary. The Limitation Clause is the criterion for balancing competing values (HCJ 10203/03 Hamifkad Haleumi v. Attorney General, IsrSC 62 (4) 715, 764 (2008) [English: http://versa.cardozo.yu.edu/opinions/hamifkad-haleumi-v-attorney-general). It reflects the approach prevailing in our law according to which constitutional rights are not absolute. "The Limitation Clause emphasises the concept that the individual lives within society and that the existence of society and its needs and traditions might justify the infringement of human rights" (the Yeshiva Students case, p. 692). This was also addressed by President D. Beinisch in the Prison Privatization case:

 

            The limitations clause expresses the balance provided in Israeli constitutional law between the rights of the individual and the needs of society as a whole and the rights of other individuals. It reflects our constitutional outlook that human rights are relative and may be restricted. The limitations clause therefore fulfils a dual role — it stipulates that the human rights provided in the Basic Laws shall not be violated unless certain conditions are satisfied, but at the same time it defines the conditions in which the violation of the human rights will be permitted (p. 620 [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-..., para. 8]; emphasis added – MN).

 

The conditions of the Limitation Clause are, inter alia, examined having in light of the nature of the right infringed, the purpose of the enactment and the intensity of the infringement caused in the particular case (Nir, para. 18 of the opinion of President D. Beinish; Menahem, pp. 258-259).

 

36.       In the instant case, the infringement is in the Law. In their arguments before us, the parties did not address the question of the Law's befitting the values of the State of Israel as aJewish and democratic state at any length. Therefore, the purpose of the Law will first be discussed and finally – and this is the essence of the matter before us– the question of the Law's proportionality will be discussed.

 

Proper Purpose

 

37.       A purpose is proper if it is intended to achieve important public interests (see: Desta, para. 24 of my opinion, and the authorities cited there), or if it is intended to promote human rights, "including by prescribing a fair and reasonable balance between rights of individuals with conflicting interests in such a way as leads to a reasonable compromise in granting the optimum rights to each individual" (Menahem, p. 264).

 

38.       The general purpose of the Retirement Age Law is to prescribe uniform rules with regard to retirement age, including raising it gradually (section 1 of the Law). The determination of uniform rules for retirement is intended to promote several interrelated sub-purposes. Those purposes are not expressly mentioned in the purpose section of the Law, but they do find expression in the Explanatory Notes to the Retirement Age Bill, and in the recommendations of the Netanyahu Commission that formed the basis for the Law's enactment (see: The Netanyahu Commission Report, pp. 6-8 for the majority opinion, and pp. 31-32 for the minority opinion of Prof. Raday). The determination of a mandatory retirement age seeks to protect the dignity of workers and improve their job security in the economy until retirement age. At the same time, it is intended to enable the employer to manage the workforce at the workplace, especially in unionized workplaces, where the employees enjoy tenure. Mandatory retirement age is also intended to promote fairness among the generations – the integration and promotion of new employees in specific workplaces where the number of jobs is limited. Alongside this, raising the mandatory retirement age in the Law enables anyone so desirous to work longer, and it thereby also seeks to provide an answer to the continuing increase in life expectancy and the rise in the ratio between the number of elderly in Israeli society and the population in general. Since these demographic changes might cause difficulties in financing the increase created in the various different pensions and place a more onerous burden on social security systems, it has become necessary to extend the time for pension savings by means of a standard rise in the qualifying age and the mandatory retirement age (the Netanyahu Commission Report, pp. 9-10).

 

39.       In my opinion, these are proper purposes. The need to protect interests of workers and promote social security is one of the foundations of the whole of labour law. In addition, a purpose that seeks to safeguard the dignity and livelihood of elderly workers recognizes them as a separate group entitled to protection in the employment market, and expresses a proper awareness of the vulnerability of the elderly in labor relations. On the other hand, in my opinion, it is not improper to have regard for the interests of new workers in the labor market. Giving weight to those interests, prima facie strives towards finding compromises between different generational groups, on the assumption that, in time, everyone is likely to reach an advanced stage of  life (see: Kelner, para. 7 of the opinion of President S. Adler; Asa, para. 22 of the opinion of Judge S. Zur, para. 3 of the opinion of President S. Adler; Weinberger, para. 59 of the opinion of Judge S. Davidow Motola; cf. HCJ 1181/03 Bar Ilan University v. National Labour Court, IsrSC 64 (3)  204, 237 (2011) [English: http://versa.cardozo.yu.edu/opinions/bar-ilan-university-v-national-labor-court] (hereinafter: the Bar Ilan" case; for criticism of this purpose, see, for example: Shenkar, “The World Belongs to the Youth”, pp. 101-105; Shnit, pp. 509-513; Ben-Israel, pp. 259-261). The purpose of managing the workplace and planning manpower is not an improper purpose either.

 

            The purposes mentioned have also been recognized as proper purposes in comparative law. Thus, the European Court of Justice has held that legitimate purposes of an arrangement for mandatory retirement on account of age might include the protection of long-standing employees against the infringement of their dignity; the promotion of new employees and the creation of jobs; and enabling the employer to plan and manage the workforce at the workplace (see, for example: Palacios de la Villa v. Cortefiel Servicios SA (C-411/05) [2007]  (hereinafter:  Palacios de la Villa); Georgiev v. Tehnicheski Universitet - Sofia, Filial Plovdiv (C-250/09) [2010] (hereinafter: Georgiev); Torsten Hörnfeldt v. Posten (C-141/11) [2012] (hereinafter: Torsten Hörnfeldt); Fuchs (C-159/10) and Köhler (C-160/10) v. Hessen [2011] (hereinafter: Fuchs); Petersen v. Berufungsausschuss für Zähn für den Bezirk Westfalen-Lippe (C-341/08) [2010]. That was also the opinion of the Supreme Court in England (Seldon v. Clarkson Wright & Jakes [2012] UKSC 590 (hereinafter: Seldon), and of the Supreme Court in Canada (Dickason; Mckinney). It should be noted that further to a legislative change, the current legal position in Canada is not as it was when the said judgments were handed down. I shall refer to this below.

 

40.       The various purposes of the Retirement Age Law demonstrate the Law's aspiration to effect a balance between the rights and interests of the different "players" in the labour market: the needs of the employer, the rights of the different groups of employees, and the needs of the economy as a whole (see: Weinberger, para. 59 of the opinion of Judge S. Davidow Motola). This also finds expression in the overall provisions of the Retirement Age Law. Thus, for example, the Law enables an employer to require an employee to retire on reaching the age of 67, but this is nevertheless on the assumption that the employee will be entitled to a pension as a substitute for income from work. In addition, the Law does not compel an employee to retire from work on reaching a certain age, and permits him and the employer to agree that the employee will retire at a later stage, and it even obliges the employer to give consideration to continuing the worker's employment after retirement age, if the employee so requests (Weinberger, paras. 64-72 of the opinion of Judge S. Davidow Motola). As a rule, striving for a fair balance between competing interests of individuals is a proper purpose (cf. the Yeshiva Students case, pp. 696-700; Manco). This is also apt in the case before us.

 

            The Petitioners, for their part, asserted that even if the determination of a uniforn rule for retirement is a proper purpose, it can be achieved in other ways, and in any event, it does not justify the serious blow caused to elderly persons by obliging them to retire from work because of their age. I shall now proceed to review these arguments.

 

The Proportionality Criteria

 

41.       The infringement of the right must be proportionate. "While the Limitation Clause stands at the heart of constitutional review, the criterion of proportionality stands at the heart of the Limitation Clause" (Lahav, para. 111 of the opinion of Justice A. Procaccia). In the scope of the proportionality criteria, an examination is made of the relationship between the purpose of the Law and the means chosen by the legislature in order to achieve it (see, for example: HCJ 6133/14 Gorvitz v. Knesset, para. 54 of the opinion of Deputy President E. Rubinstein (March 26, 2015) (hereinafter: the Gorvitz case); an application for a Further Hearing was dismissed, HCJFH 2649/15 Gorvitz v. Knesset (August 2, 2015)).  The proportionality criteria express the concept that it is not sufficient for the purpose of the statute to be a proper one. It is also necessary that the means chosen to achieve that purpose to be fit and proper (the Yeshiva Students case, p. 705). The proportionality of the statute is examined by means of three subordinate criteria. The first subordinate criterion is that of the rational connection, which considers whether the statute has the power to realise the purpose for which it was enacted. The second subordinate criterion – the means of least infringement – examines whether among the means that achieve the purpose of the law, the legislature has chosen the means that infringes human rights the least. Finally, the third subordinate criterion, namely the test of proportionality "stricto sensu", requires that there should be a proper relationship between the purpose of the statute and the associated infringement of the constitutional rights.

 

            The Rational Connection Criterion

 

42.       According to the rational connection test, as aforesaid, the means chosen by the legislature must lead to the achievement of the purpose underlying the statute. This criterion does not require that the statutory means to lead to the achievement of the purpose with absolute certainty. Nevertheless, a slim, theoretical prospect does not suffice (Adala, p. 323; Aharon Barak, Proportionality in Law: Infringement of the Constitutional Right and their Limitations, 373-374 (2010) (hereinafter: Barak, Proportionality)). Does the arrangement in the Retirement Age Law have the power to achieve its purposes? In my opinion, the answer to this question is in the affirmative. A mandatory retirement arrangement is based on rational considerations, for which support can be found in case law and in the economic and legal literature. Firstly, there is a reasonable connection between the determination of an equal, uniform rule for retirement from work and the promotion of certainty in the employment market. The fixing of a retirement age enables the worker to know when he will reach the time to rest from his daily toil. Alongside this, it enables employers to plan the workforce at the workplace (see also: Zozal, para. 24 of the opinion of Judge S. Joubran; Nevo, p. 754). The Petitioners, for their part, asserted that the Law enables flexibility in regard to retirement, and the connection between mandatory retirement and promoting certainty in the economy is therefore slim. The Retirement Age Law does, indeed, provide that in certain circumstances it is possible to retire at an age that is different from the qualifying age or the mandatory retirement age (see: section 5 of the Law, which permits voluntary early retirement on certain conditions; section 3 of the Law, which permits women to retire at a younger age than men; section 10 of the Law, which permits an employee and employer to agree that the retirement age will be higher than the mandatory retirement age). Nevertheless, it cannot be inferred from the foregoing that there is no connection between mandatory retirement and the promotion of certainty, nor can it be inferred that there is no need for certainty in the scope of retirement arrangements. I would mention the the factors of certainty and manpower planning did find expression in the recommendations of Prof. Raday in the Netanyahu Commission Report,. Apart from that, the Retirement Age Law seeks to balance different interests, which naturally cannot lead to the absolute achievement of every single purpose of the Law. Consequently, even if the purpose of certainty is not completely achieved, this does not necessarily attest that there is no rational connection between it and the Law.

 

43.       In my opinion, there is also a rational connection between mandatory retirement and promoting the interests of employees in certain respects. The accepted view is that the existence of a mandatory retirement age limits the need for the employee to undergo repeated tests of his abilities and performance that might cause him pressure and uncertainty, and even lead to arguments over his competence (see and compare: Sadeh, para. 13 of the opinion of Justice E. Hayut; HCJ Recant, pp. 373-374; Weinberger, para. 60 of the opinion of Judge S. Davidow Motola). That being the case, it is not unreasonable to assume that a mandatory retirement arrangement can in promote the employee's interest in this regard. Moreover, when there is a predetermined, uniform retirement age, the ordinary practice is to wait until that age and not require the employee's early retirement, even if there is a certain decline in his competence. Consequently, mandatory retirement might reduce the number of workers who are discharged from the workplace before the normal retirement age (see: Shnit, p. 511 and the authorities cited there). In addition, there are those who argue that a mandatory retirement age is an essential, or at least an important element in the employment model termed "deferred compensation". This model is common in unionized workplaces that grant employees tenure by virtue of collective agreements, but it can also exist in an informal format without any explicit contractual arrangement (Rabin-Margalioth, p. 155). In a deferred compensation system, the employee's wage is characterized by a constant increase in its real value over the period of employment, and at a certain stage it even exceeds the employee's marginal output. Such an employment model is based on the assumption that parties to a labor relationship make investments in their relationship that decline to nothing in the case of employment termination (ibid., p. 154). Both parties – the employee and the employer – therefore wish to maintain a long-term labor relationship. A deferred-compensation employment model helps to promote that objective. As described in the article by Rabin-Margalioth:

 

            The beginning of the relationship constitutes the employee's training period, in which he is remunerated in excess of his marginal output. During the second time period (mid-career), the wage continues to rise, but the rate at which the employee's output increases is greater and the wage paid therefore falls below the worker's marginal output. This increase in output is made possible thanks to the skills that the employee has developed in the course of his work. In the third stage of the relationship (the later period), although the employee's wage continues to rise, his marginal output no longer increases and sometimes even declines (ibid., p. 154).

 

At the same time, the deferred compensation model is also based on the existence of a fixed time that is known in advance for the termination of employment, namely a time when the employee can be required to retire because of his age. Without such a time, a particular employer will find it difficult to assure his employee increased wages linked to increased seniority (ibid., p. 155). This approach – which connects mandatory retirement age with the deferred compensation model – has support in the economic literature and empirical research (Edward P. Lazear, “Why is There Mandatory Retirement?” 87 (6) Journal of Political Economy 1261 (1979); Mandatory Retirement: Why Governments Should Quit Banning It (AIMS Labour Series Commentary #3, 16.12.2008) and the authorities cited  there; Samuel Issacharoff and Erica Worth Harris, “Is Age Discrimination Really Age Discrimination?: The ADEA's Unnatural Solution,” 72 NYU L. Rev. 780, 787-790 (1997) (hereinafter: referred to as Issacharoff & Harris); Beverley Earle and Marianne DelPo Kulow, “The "Deeply Toxic" Damage Caused by the Abolition of Mandatory Retirement and its Collision with Tenure in Higher Education: A Proposal for Statutory Repair,” 24 S. Cal. Interdis. L.J. 369 (2015) (hereinafter: Earle & Kulow); Julie C. Suk, “Evolutions in Antidiscrimination Law in Europe and North America: From Antidiscrimination to Equlity: Stereotypes and the Life Cycle in the United States and Europe,” 60 Am. J. Comp. L. 75, 93 (2012) (hereinafter:  Suk); Rabin-Margalioth, pp. 150-161; Shenkar, The World Belongs to the Youth, pp. 139-141; and also see the opinion of Judge Y. Plitman in Dead Sea Works, mentioning the advantages of fixing a mandatory retirement age in collective agreements (although he was left in the minority there with respect to the result, it appears that the other members of the bench did not specifically dispute his said approach)). It cannot therefore be said that this approach, which regards mandatory retirement age as a means to promote job security, is irrational.

 

44.       As regards the purpose of promoting new employees and increasing jobs, there are no unequivocal findings that employment of the elderly leads to unemployment of the young. Consequently, it appears that if the mandatory retirement arrangement was intended for that purpose, it would have been difficult to find correspondence between it and the means taken (see also “Equality at Work: Tackling the Challenges, Global Report Under the Follow-Up to the ILO Declaration on Fundamental Principles and Rights at Work,” International Labour Conference, 96th Session 2007, Report I (B)), p. 42; Shenkar, The World Belongs to the Youth, pp. 101-104). Notwithstanding the foregoing, the need for a balance between senior employees and new ones might be necessary in certain workplaces typified by a limited number of tenured positions and a "narrow" promotion pyramid (The Netanyahu Commission Report, p. 9 of the majority opinion; LabA (National)  300205/98 Avni v. New Histadrut General Federation of Labor, para. 11 of the opinion of Judge S. Adler (June 2, 1999)). This factor is particularly salient when institutions of higher education are involved, where on the one hand, the integration of new academic staff members is important as a means for the interchange of ideas and innovation, but on the other hand, there is a limited number of positions. The Supreme Court of Canada discussed this in Mckinney:

 

            Mandatory retirement is thus intimately tied to the tenure system. It is true that many universities and colleges in the United States do not have a mandatory retirement but have maintained a tenure system. That does not affect the rationality of the policies, however, because mandatory retirement clearly supports the tenure system. Besides, such an approach, as the Court of Appeal observed, would demand an alternative means of dismissal, likely requiring competency hearings and dismissal for cause. Such an approach would be difficult and costly and constitute a demeaning affront to individual dignity.

 

            Mandatory retirement not only supports the tenure system which undergirds the specific and necessary ambience of university life. It ensures continuing faculty renewal, a necessary process to enable universities to be centres of excellence. Universities need to be on the cutting edge of new discoveries and ideas, and this requires a continuing infusion of new people. In a closed system with limited resources, this can only be achieved by departures of other people. Mandatory retirement achieves this in an orderly way that permits long-term planning both by the universities and the individual.

 

The United States Federal Court of Appeal made a statement along similar lines in Lamb v. Scripps College, 627 F.2d 1015, 1023 (1980):

 

            In light of the unique problems encountered by universities in their efforts to prevent intellectual stagnation and to assure diversity and competence in their faculties … and the likelihood that a mandatory retirement policy will remedy at least some of these problems, … California's determination that different treatment is warranted for a certain class of tenured private college professors than for other tenured private college professors and other employees is rationally based … In rejecting Lamb's equal protection challenge on that basis, we make no endorsement of mandatory retirement as a matter of social policy. We are aware of both the debilitating effect that compulsory retirement can have on an individual, and the potential loss to society in terms of human resources that may result therefrom. The promulgation of a mandatory retirement policy, however, reflects a legislature's resolution of competing interests and this is “precisely the type of clash of competing social goals that is best resolved by the legislative process. The federal courts should not second guess the wisdom or propriety of such legislative resolutions as long as they are rationally based” …

 

The Petitioners, for their part, pleaded that the effect of mandatory retirement on actual retirement age is negligible. According to them, research shows that even in countries where mandatory retirement because of age has been abolished, the retirement age has risen only slightly. Therefore, according to them, abolishing mandatory retirement because of age will, in any event, not affect new workers who wish to progress in the workplace. On the other hand, there is other research according to which the abolition of mandatory retirement has led to an increase in the age of those retiring in certain workplaces (see, for example, Earle & Kulow; Issacharoff & Harris; Orley Ashenfelter and David Card, Did the Elimination of Mandatory Retirement Affect Faculty Retirement Flows? (NBER Working Paper No. 8378) (2001), http://www.nber.org/papers/w8378; but see Till von Wachter, The End of Mandatory Retirement in the US: Effects on Retirement and Implicit Contracts, Center for Labor Economics, University of California, Berkeley (Working Paper No. 49 (2002)), http://cle.berkeley.edu/wp/wp49.pdf)). Nor is it possible to ignore the context of this petition, which we should recall, is brought by senior lecturers in institutions of higher education. According to the data presented to us by the Technion, the number of tenured posts in the institution is limited, and the acceptance of new academic staff depends,  to a certain extent, upon the retirement of senior staff members. Indeed, the weight of the intergenerational argument is not the same in all workplaces, and it is influenced by macro-economic changes. This argument should, therefore, perhaps not be given great weight. However, ultimately, it cannot be said that the connection between mandatory retirement and the promotion and integration of new employees in certain workplaces is merely theoretical.

 

45.       The Petitioners further argued that the purposes of the Law detailed above can be achieved in other ways but, as is known, the rational connection criterion does not require that the means chosen be the only one that can achieve the purpose. It suffices for there to be a reasonable possibility that mandatory retirement age promotes the Law's purposes in order to find that there is a rational connection between the Law's purposes and the means adopted by it. The choice between different possible means for achieving the purpose will now be examined in the scope of the second and third subsidiary tests (see:  the Yeshiva Students case, pp. 706-707; Barak, Proportionality, pp. 376-377).

 

The Means of Lesser Infringement Test

 

46.       The lesser-infringement test consists of two elements. The first element considers whether there is an alternative that can achieve the proper object of the Law to the same extent as the means adopted by the Law. The second element examines whether the alternative infringes constitutional rights to a lesser extent than the infringement of the Law under the Court's review (Barak, Proportionality, p. 399). In Retirement Age Law, the legislature preferred to adopt an overall, uniform criterion, rather than abolish the mandatory retirement age and arrange for individual competence tests. In principle, a sweeping arrangement might raise concern of disproportionality in the sense of the second subordinate criterion. In this respect, the statement of this Court in the Association for Civil Rights case is apt:

 

            Indeed, the employer will find it difficult to satisfy the “smallest possible harm test” if he does not have substantial reasons to show why an individual examination will prevent the attainment of the proper purpose that he wishes to achieve (p. 367 [http://versa.cardozo.yu.edu/opinions/association-civil-rights-v-minister..., para. 9, per Barak P]).

 

I also considered this, albeit in a different context, in HCJFH 203/14 Salah v. Prison Service (April 14, 2015):

 

            In general, “any sweeping arrangement is ‘suspect’ of not being the lesser infringing means because of the possibility of individually examining the individuals included in the relevant group” (the Younes case, para. 74 of the opinion of Justice Y. Danziger; see also: El Abeid, pp. 706-707; Saif, pp. 76-77 [http://versa.cardozo.yu.edu/opinions/saif-v-government-press-office]; the Airports Authority case, para. 5 of the decision of President (Emeritus) D. Beinish). On the other hand, sometimes an individual examination will be ineffective or cannot be made at all (see and compare: HCJ 7052/03 Adalah Legal Center for Arab Minority Rights in Israel v. Minister of the Interior, IsrSC 61 (2) 202, (2006) [http://versa.cardozo.yu.edu/opinions/adalah-legal-center-arab-minority-r... HCJ 466/07 MK Zahava Galon – Meretz-Yahad v. Attorney General (January 11, 2012) [http://versa.cardozo.yu.edu/opinions/gal-v-attorney-general-summary]; Younes, para. 74 of the opinion of Justice Y. Danziger and the authorities there, and the opinion of Justice I. Amit).

 

There can, indeed, be situations in which an individual examination will not achieve the purpose of the Law to the same extent (Adalah; HCJ 466/07 Galon v. Attorney General (January 11, 2012)). In view of the overall material presented to us, I believe that in the instant case the Respondents have shown substantial reasons in support of the claim that if mandatory retirement is replaced by an individual examination, that might lead to preventing the achievement of the Law's objectives. Thus, a regime of functional retirement does not meet the need of certainty to the same extent, nor answer the need to plan the workforce in the workplace. Such a model might also upset the balance between senior and new employees at particular workplaces. In addition, a move to functional retirement might impair job security in the workplace. First, because, as noted, arrangements that assure the employee tenure in the workplace (such as the "deferred compensation" model) depend to a large extent on the existence of a mandatory retirement age. Second, in the absence of a mandatory retirement age, employers might more frequently compel workers to retire before the customary retirement age. Moreover, choosing the functional retirement model might expose employees to constant examination of their competence in such a way as might create unease, stress and anxiety. As noted, these considerationsfind support in the legal and economic literature (including the current literature), and they also find expression in foreign legislation and case law. I shall refer to comparative law at greater length in the course of the third subsidiary test, but as regards the criterion of the means of lesser infringement, I believe that the legislature had adequate foundation to determine that the functional retirement model will not achieve the purposes of the Law to the same extent. In any event, it is doubtful whether that model infringes workers' rights and dignity less.

 

            The Petitioners dispute the disadvantages of the functional retirement model. According to them, functional retirement does not contradict the deferred compensation model, which can be safeguarded in other ways, like giving incentives to employees who choose to retire early. In any event, according to them, the deferred compensation model is only relevant to unionized workplaces and not to the economy as a whole. In addition, as they see it, functional retirement does not infringe dignity because it is based on substantive reasons for a person's employment termination. Consequently, they believe that the biological retirement model, as enacted in the Retirement Age Law, does not meet the second proportionality test. The Petitioners, like the Respondents, supported their arguments with various authorities and research in the spheres of economics and law. However, having regard for the factual and legal foundations detailed above, that does not suffice to find that a functional retirement regime should be preferred to biological retirement, and to intervene in the choice made by the legislature. It should be borne in mind that the vast majority of the factors for and against mandatory retirement – like the factors in support of other retirement models – are based on appraisals, various expert opinions, and forecasts. Exact science is not involved. Consequently, it is difficult to find a particular retirement model that will provide the optimum benefit of all the "players" in the labor market. It is not without reason that the public, legal and academic debates on this subject have continued in recent years, including in countries where mandatory retirement because of age has been abolished (see for example, Shenkar, pp. 37-39 and the numerous authorities there; Doron, pp. 31-56; Shnit; Ben-Israel; Rabin-Margalioth; Seldon; Earle & Kulo; Suk; Jonathan R. Kesselman, “Challenging the Economic Assumptions of Mandatory Retirement,” in Time's up!: Mandatory Retirement in Canada 161 (Terry Gillin, David Macgregor, Thomas Klassen (eds.) (2005); Lucy Vickers and Simonetta Manfredi, “Age Equality and Retirement: Squaring the Circle,” 42 Ind. Law J. 61 (2013); Orly Gerbi, “Compulsory Retirement in Israel: Is the end in Sight?” 24 No. 2 Emp. & Indus. Rel. L. 25 (2014); Malcolm Sargeant, “Distinguishing Between Justifiable Treatment and Prohibited Discrimination in Respect of Age,” 4 J.B.L. 398 (2013); Neta Nadiv and Ariel Mirelman, “Respect for the Old: An Examination of the Issue of Employment after Retirement Age,” 10 Kiriat Hamishpat 276 (2014) (hereinafter: Nadav & Mirelman) (Hebrew)). For that reason, as well, I do not believe that it is appropriate to intervene in the legislature's preferring the biological retirement model to the functional retirement model.

 

            Having said that, and although the Petitioners did not refer to it at length, it cannot be ignored that there is a broad spectrum of retirement models between a model of compulsory retirement because of age and a model of functional retirement, (see and compare: Rosenbaum, para. 18 of the opinion of President A. Barak; Weinberger, paras. 61-62 of the opinion of Judge  S. Davidow Motola). Thus, for example, a compulsory retirement age only in the framework of collective agreements, which provide job security and an adequate pension, might have been permitted (ibid.; Rabin-Margalioth). Another solution might have been permitted mandatory retirement only if the employer could justify it. Another alternative is gradual retirement, similar to the model existing at the Technion. I will not deny it: these solutions are fair and reasonable, and it might be proper to give them serious consideration. However, as earlier noted, the Petitioners did not base their arguments on these alternatives and consequently, we were not presented with support for the an argument that the alternatives are of equal value to the biological retirement model. We cannot find that they are means that can achieve the purpose of the Law to an equal extent. Moreover, when comparing the existing retirement model with other alternatives, it should be borne in mind that the existing model, according to our interpretation, requires the employer to give consideration to an employee's request to continue working even after the retirement age fixed in the Law (Weinberger; I shall refer to this at greater length below). Consequently, to some extent, even the existing arrangement exrpressed consideration for the individual particulars of the employee tn a manner that reduces the infringement of his rights.

 

            My conclusion is, therefore, that the mandatory retirement arrangement meets the second proportionality test.

 

Proportionality Stircto Sensu

 

47.       In the scope of the third subsidiary test – that of proportionality “in the narrow sense” – an examination is made of whether there is a right and proper relationship between the benefit that will arise from achieving the Law's purposes and the associated infringement of the constitutional rights. This subsidiary test is a values test, based on a balance between rights and interests (see, for example: Desta, para. 24 of my opinion). In the instant case, the parties have presented two competing philosophies. While the Respondents side with the existing retirement model, the Petitioners ask that we strike it down because it seriously infringes the rights of the elderly. Both parties have put a wide range of arguments to us, each from its own point of view. Ultimately, having weighed the infringement caused by the Law, on the one hand, and its benefit, on the other hand, I have reached the overall conclusion that there are no grounds for the Court to intervene in the legislature's choice to prefer a model of compulsory retirement because of age.

 

48.       As earlier stated, a model of compulsory retirement because of age harms individuals who can, and want to, continue working. Furthermore, as noted, research shows that there is no necessary connection between one’s age and one’s performance at work. Although certain abilities might decline with age, there are substantial differences in output within the elderly group (see, for example: Shnit, p. 511; Ben-Israel, p. 268). Against that background, compulsory retirement might cause economic and social harm and lead to serious feelings of deprivation and incompetence. Compulsory retirement because of age might also perpetuate a collective stigma in regard to the abilities and skills of the elderly (Ben-Israel, p. 273). Indeed, "… forced retirement, based on nothing except their age, sends the message that older workers are not qualified. This message hurts the core of a person’s dignity – a person who, only because of his age, is identified as being of little worth. " (Zozal, para. 26 of the opinion of Justice S. Joubran [http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi...). It should be borne in mind that the determination of a mandatory retirement age does not merely affect the time of a person's retirement from work, but it might also have an effect on his ability to obtain other jobs after he has passed the retirement age (see, for example, the handicaps that were discussed in HCJ Kelner with regard to the acceptance to work of someone who has passed retirement age; see also: LabC (TA District) 6286/06 Matatia v. Paint Lee Ltd. (December 17, 2009); Nadav & Mirelman, p. 275). It can also be argued that compulsory retirement leads to the relinquishment of highly experienced, quality manpower that can contribute to the workplace and the economy in general. Abolishing mandatory retirement would therefore enable society to profit from the experience and skills of the elderly.

 

49.       On the other hand, there are weighty arguments in support of a model of uniform, compulsory retirement, as briefly mentioned earlier. In my opinion, among the various factors, consideration should be given to the argument that the implementation of uniform retirement reduces the need constantly to examine the employee's competence, and thereby diminishes uncertainty, tension and anxiety. A decision that an elderly worker must retire because of a decline in his performance at work might also cause serious feelings of incapacity and create an unfavourable "personal stigma" in respect of him. A statement along similar lines was made by Justice D. Beinisch in HCJ Recant:

 

            I would further add that I personally believe that there are substantial reasons that can  justify a uniform, compulsory retirement age. Since that is not the question to be decided here, I shall not express my opinion on that question in detail, but merely state that I tend to believe that, in general, a uniform retirement age is a solution that is preferable to compulsory retirement on an individual basis. Among the disadvantages of such functional retirement, which is gaining a growing number of supporters, mention may also be made of the infringement to the dignity of the ageing employee whose ability to work will be under constant scrutiny (ibid., p. 374).

 

This was also the opinion of Prof. Raday, who stated in the Netanyahu Report that abolishing the mandatory retirement age might lead to the development of personal competence tests for the elderly who wish to continue working after the usual retirement age, "tests that might demean and infringe the dignity of those elderly people" (p. 31; see also: Sadeh, para. 13 of the opinion of Justice E. Hayut). I am aware that in certain contexts it has been held that individual competence tests do not infringe the employee's dignity. This has regard for the fact that employees' performance is a relevant consideration (the Association for Civil Rights case, p. 369; HCJFH Recant, p. 355). However, even if the intensity of the affront in such a case does not amount to an infringement of human dignity, it certainly has an effect on the worker's conditions of employment and welfare. The practical difficulties involved in the development of individual competence tests cannot be ignored either. While an individual competence test might be simple and possible when work that requires physical skill is involved, that is not the case when occupations that necessitate a qualitative appraisal of work capacity are involved (see and compare: HCJ Kelner, para. B of the opinion of Justice E. Rubinstein). This is reinforced in the instant case, which involves senior members of the Technion's academic staff who enjoy academic freedom and independence in research, while any interference in their work might be perceived as the exertion of improper pressure on some of them (see and compare: Mckinney; and cf. the dissenting opinion in Dickason, above, in which the conduct of peer review was suggested as a means to evaluate the competence of a university's academic staff). The Petitioners indeed argued that frequent use is now made of individual competence tests, and they cited as an example the civil service rules that permits them. Although that possibility does exist, it is not the default. Naturally, if mandatory retirement were abolished, the use of individual competence tests would be far more prevalent, with all the implications thereof.

 

            I would incidentally note that I do not give great weight in my decision to the argument that the development of individual competence tests would place the employer under a financial burden. Although such a budgetary factor might sometimes be relevant, in the case before us it does not justify the infringement of equality. It is generally acknowledged that "human rights cost money", and as a democratic society we must be willing to bear their cost (see and compare, HCJFH Recant, p. 355; HCJ 4541/94 Miller v. Minister of Defence, IsrSC 49 (4) 94, 142 (1995) [English:  http://elyon1.court.gov.il/files_eng/94/410/045/Z01/94045410.z01.pdf]; see also: Age Concern England (C-388/07) [2009] para. 46; Fuchs, para. 52). My reasons in this regard are entirely concerned with the possible harm to workers that would be caused by widespread application of individual competence tests, and the practical difficulties of implementing them equally and fairly.

 

50.       Another relevant factor is the scope of the elderly's participation in the labor market. There is concern, as aforesaid, that the abolition of the mandatory retirement age will lead to the early dismissal of elderly employees even before reaching the accepted retirement age, and will also affect the arrangements that give job security to workers. Moreover, as mentioned above, the mandatory retirement age might increase certainty and facilitate the planning of manpower in the workplace, as Prof. Raday stated in the Netanyahu Report. Finally, as noted, a model of compulsory retirement because of age takes into account the interests of new workers in the labor market, although this factor is at most relevant to certain workplaces in which the number of posts and the possibilities of promotion are limited. Added to these overall factors is the underlying premise of the Retirement Age Law that a person who retires can continue subsisting independently after retirement by receiving some or other pension (that factor has also been raised in the case law of the European Court of Justice: Palacios de la Villa, para. 73; Rosenbladt v. Oellerking Gebäudereinigungsges GmbH (C-45/09) [2011], para. 44-47 (hereinafter: Rosenbladt); Alysia Blackham, “Tackling Age Discrimination against Older Workers: a Comparative Analysis of Laws in the United Kingdom and Finland,” 4 Cambridge J. Int'l & Comp. L. 108, 112-117 (2015)). This is even though reforms in retirement arrangements, like the transition from pension savings based on the accrual of rights ("defined benefits") to pension savings based on the accrual of money ("defined contributions"), have created different arrangements between one employee and another (as regards the pension arrangements existing in Israel, see: HCJ 2944/10 Koritsky v. National Labour Court (October 13, 2015), and the numerous authorities cited there – applications for a further hearing were dismissed: HCJFH 7730/15, HCJFH 7649/15 State of Israel - Ministry of Finance v. Koritsky (February 23, 2016); and see also Bar-Ilan; Elhatani; HCJ 6460/12 Eliav v. National Labour Court, IsrSC 60 (4) 411 (2006)).

 

51.       It emerges from the aforegoing that the model of compulsory retirement because of age has advantages and disadvantages. As opposed to this, other models, such as the functional retirement model, based on individual competence tests, are not entirely free of difficulties (see also the comprehensive review of the arguments for and against a mandatory retirement age in Sadeh, para. 13 of the opinion of Justice E. Hayut). Given this complex background, I believe that the legislature's preference of the model of compulsory retirement because of age over other models is based on reasonable considerations that give no cause for the Court's intervention. As this Court has acknowledged, in the context of a constitutional review, the legislature enjoys a "margin of proportionality", within which there are several options. The Court will intervene only when the means chosen by the legislature "departs considerably from the scope of the margin of legislative appreciation given to it and is clearly disproportionate " (Prison Privatization, p. 623 [http://versa.cardozo.yu.edu/opinions/academic-center-law-and-business-v-..., para. 46, per Beinisch P] (emphasis added – MN); Gorvitz, para. 53; AAA 4436/02 Tishim HaKadurim – Members Club Restaurant v. Haifa Municipality, IsrSC 58(3) 782, 812-813 (2004)).

 

            In my opinion, the choice of the compulsory retirement because of age model is not "clearly" disproportionate. This model was chosen after the Netanyahu Commission had deliberated and found that it is inappropriate, for the time being, to abolish mandatory retirement. A similar conclusion was also reached by earlier public commissions that had similarly considered the issue of retirement age (the Nitzan Commission (1967); the Kister Commission (1975); the Vogel Commission (1994); see the reference thereto at p. 26 of the Netanyahu Commission Report). Contrary to the Petitioners’ claim, the Netanyahu Commission considered factors for and against mandatory retirement. This clearly emerges from the recommendations of the Commission in which those factors were detailed (see, respectively: pp. 6-8 and pp. 31-32 of the Netanyahu Commission Report). The legislature's choice of the compulsory retirement because of age model reflects was an informed choice among different possibilities. In view of all the advantages and disadvantages described above, that choice does not depart from the broad margin of proportionality given to the legislature under the circumstances (see also: Weinberger, para. 14 of the opinion of Judge O. Verbner). Under these circumstances, even if some of the usual considerations justifying mandatory retirement, and their relative weight can be questioned, that does not suffice in order to find that the Law is disproportionate.

 

52.       This conclusion is supported by various data from which it emerges that the mandatory retirement age model does not actually cause substantial harm to the group of elderly workers in Israel. First, the situation of Israel is better relative to that of the countries in the OECD: the rates of employment of elderly workers in Israel are higher, the demographic make-up of Israel is younger, and the retirement age is the highest in the OECD (Ronnie Hacohen, “Employment of the Elderly in Israel: Review of the State of People over the Age of 45 in the Israeli Labour Market,” The Israeli Employment Service – Policy Research Division, Deputy Director of Planning (February 2014); see also: The Bank of Israel Report, 2015, p. 45 http://www.boi.org.il/he/NewsAndPublications/RegularPublications/DocLib3...).

 

            Moreover, according to OECD research, the average effective retirement age in Israel between 2009 and 2014 was among the highest of the countries examined in the research, including countries like the United States and Australia, where mandatory retirement because of age has been abolished by legislation (OECD, Ageing and Employment Policies – Statistics On Average Effective Age of Retirement, http://www.oecd.org/els/emp/ageingandemploymentpolicies-statisticsonaver...):

 

 

 

 

 

 

MEN

WOMEN

53.       The mandatory retirement age model also exists in various different countries and is not exceptional in that respect. Although the possibility of requiring a person to retire because of his age is not usually prescribed by general legislation, it very common in the employment market in various  contractual frameworks or in specific legislation (Shenkar, p. 25). In addition, in 2000, the European Union adopted a directive intended to lay down a general framework for employment equality (Council Directive 2000/78/EC of 27 November 2000). Inter alia, the directive prohibits discrimination against a worker because of his age (Articles 1 and 2), while establishing specific exceptions to the prohibition of age discrimination (Articles 6(1) and 6(2)):

 

            Justification of differences of treatment on grounds of age

 

            1. Notwithstanding Article 2(2), Member States may provide that differences of treatment on grounds of age shall not constitute discrimination, if, within the context of national law, they are objectively and reasonably justified by a legitimate aim, including legitimate employment policy, labour market and vocational training objectives, and if the means of achieving that aim are appropriate and necessary.

 

            Such differences of treatment may include, among others:

 

            (a) the setting of special conditions on access to employment and vocational training, employment and occupation, including dismissal and remuneration conditions, for young people, older workers and persons with caring responsibilities in order to promote their vocational integration or ensure their protection;

 

            (b) the fixing of minimum conditions of age, professional experience or seniority in service for access to employment or to certain advantages linked to employment;

 

            (c) the fixing of a maximum age for recruitment which is based on the training requirements of the post in question or the need for a reasonable period of employment before retirement.

 

            2. Notwithstanding Article 2(2), Member States may provide that the fixing for occupational social security schemes of ages for admission or entitlement to retirement or invalidity benefits, including the fixing under those schemes of different ages for employees or groups or categories of employees, and the use, in the context of such schemes, of age criteria in actuarial calculations, does not constitute discrimination on the grounds of age, provided this does not result in discrimination on the grounds of sex.

 

Based on the principles of the said directive, the European Court of Justice has on several occasions held that a mandatory retirement age can be fixed if it is accompanied by a legitimate aim, and if the means taken to achieve it are reasonable and proportionate. Thus, the European Court has held  in a series of judgments on the subject, that legitimate aims in this connection include, for example, the access of new workers to the labor market; planning manpower in the workplace; avoiding disputes with employees with regard to their competence for work and the "negative" personal labelling of employees who have been forced to retire due to individual incapacity; and the sharing of opinions and ideas between senior and new employees, especially in institutes of higher education (see, for example: the judgments in Palacios de la Villa Georgiev; Torsten Hörnfeldt; Fuchs). As regards the proportionality of mandatory retirement, the European Court of Justice held in one of the cases that it is generally a practice that does not infringe rights more than necessary. In this context the Court stated that the compulsory retirement because of age model is common in Europe, and can serve to balance political, economic, social, demographic and budgetary considerations (Torsten Hörnfeldt, para. 28; Rosenbladt, para. 44).

 

54.       Accordingly, in various European countries there is in no legal bar to the fixing of a mandatory retirement age. In Germany, for example, the majority of State employees are required to retire between the ages of 65 and 67, while it is possible to extend their service beyond that, if consistent with the needs of the employer, and the employee agrees (Beamtenstatusgesetz Länder [Civil Servant Status Act for the Civil Servants of the Federate States], promulgated June 17, 2008 Bundesgesetzblatt [BGBl] BGBl I 2008, 1010). Similarly, a mandatory retirement age can be prescribed in an agreement between the employee and the employer, provided that the retirement age fixed is no less than the customary retirement age, and that there is justification for it, such as management of the manpower in the workplace (Sozialgesetzbuch VI: Gesetzliche Rentenversicherung [SGB VI] [Social Act VI] 19.Februar 2002 Bundesgesetzblatt [BGBl.]). Similar law also applies in France (Code du travail [French Labour Code] Art. L1237-5-1; Loi n° 84-834 du 13 Septembre 1984 relative à la limite d'âge dans la fonction publique et le secteur public [law n. 84-834 concerning the age limit of civil servants] available at legifrance.fr); in Austria (Beamten-Dienstrechtsgesetz 1979 [BDG] [Civil Servant Act 1979] Bundesgesetzblatt [BGBl.] Nr. 333/1979 §13-14); Norway (Act Relating to Working Environment, Working Hours and Employment Protection, § 13-15); Sweden (Developing Anti-Discrimination Law in Europe (European Commision, 2013), p. 36, http://ec.europa.eu/justice/discrimination/files/comparative_analysis_20...); and Switzerland (Personal- und Besoldungsgesetz des Kantons Schwyz [PG] [Employee and Remuneration Act of Canton Schwyz] June 26, 1991).

 

            It should be noted that there have been changes over the last year in some European countries. In Denmark, the mandatory retirement age in the public sector was abolished, but private employers were able to require employees to retire because of age (Ageing and Employment Policies: Denmark 2015, Working Better with Age (OECD Publishing), p. 21-22). As of January 2016, a mandatory retirement age has also been abolished in the private sector. In Ireland, a December 2015 enactment has limited the ability to fix a mandatory retirement age (Employment Equality Act 1998; Equality (Miscellaneous Provisions) Act 2015).

 

            A mandatory retirement age also applies in countries of Asia like Japan and South Korea (A Comparative Review of International Approaches to Mandatory Retirement (Research Report No. 674 (2010), https://www.gov.uk/government/uploads/system/uploads/attachment_data/fil... (hereinafter: Comparative Review of Mandatory Retirement); http://www.agediscrimination.info/international/Pages/southkorea.aspx; see also the comprehensive comparative review in the opinion of Justice N. Hendel in Zozal).

 

55.       On the other hand, there are countries where the fixing of a mandatory retirement age has been prohibited      . In the United States, for example, compulsory retirement because of age was abolished in by law in 1986 (Age Discrimination in Employment Act, 29 USC 621-34 (1967) [ADEA]). At a later stage, it also became prohibited to require a person to retire because of his age in Britain, Canada, Australia and New Zealand (Comparative Review of Mandatory Retirement, pp. 2-3; Shenkar, pp. 24-25). Nevertheless, it should be emphasised that when the constitutionality of mandatory retirement has been considered by the American  and Canadian courts, the courts there refused to intervene (see, for example: McKinney; Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976)). The change in retirement policy has been made, as aforesaid, in legislation. Similarly, in those countries, too, there are exceptions to the prohibition against requiring a person to retire because of his age, and some of the exceptions are quite broad. Thus, for example, in Britain, although the uniform mandatory retirement age was abolished in 2011, an employer can still bring the employment of a worker to an end because of his age on the basis of legitimate social factors, such as intergenerational justice (giving employment possibilities to new workers), and the desire to avoid infringing the dignity of an employee against the background of arguments concerning his competence. This is all provided that the employee's obligation to retire because of his age is proportionate (Equality Act 2010 (UK), c 15, §13(1)-(2); Malcolm Sargeant and Susan Bison-Rapp, “Diverging Doctrine, Converging Outcomes: Evaluating Age Discrimination Law in the United Kingdom and the United States,” 44 Loy. U. Chi. L.J. 717 (2013); Seldon). In contrast, in the United States the exception is relatively narrow: it is permissible to compel an employee to retire only if the same is reasonably obliged by the nature of the job (Anthony Sheppard, „Mandatory Retirement: Termination at 65 is Ended, but Exceptions Linger On,” 41 U.B.C. L. Rev. 139, 176-177 (2008); Anja Wiesbrock, “Mandatory Retirement in the EU and the US: The Scope of Protection Against Age Discrimination in Employment,” 29 Int'l Comp. Lab. L. & Ind. Rel. 305 (2013)). Similarly, in Australia and New Zealand an employer can require an employee to retire if he can no longer meet the basic requirements of the job (Rachael Patterson, “The Eradication of Compulsory Retirement and Age Discrimination in the Australian Workplace: A Cause for Celebration and Concern,” 3 Elder Law Review 1 (2004)). In Canada, there are different arrangements in each province (Shenkar, pp. 31-32). In some, the law is similar to that in the United States, while in others, the exception is broader. Thus, for example, one of the provinces permits fixing a mandatory retirement age, provided that it involves a bona fide requirement that is part of a retirement or pension arrangement. According to a judgment of the Canadian Supreme Court on this issue, it is not necessary to show that mandatory retirement is an essential part of the pension arrangement (New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan, [2008] 2 S.C.R).

 

56.       A comparative examination of the retirement issue shows that the retirement model chosen by the legislature is not exceptional. In different countries there are a range of possibilities for the regulation of retirement generally, and pension age in particular. The various factors for and against mandatory retirement age are frequently debated in those countries, and the legal, social and economic controversy is not yet over. Even when significant changes to retirement arrangements have been made in other countries, those changes have, as noted, been made in legislation and not by judicial ruling. It would appear that this is also the course that should be taken in the instant case.

 

57.       In addition, even were we of the opinion that the mandatory retirement age is improper in its present format, it would be possible to conceive of various ways to rectify it. Thus, for example, it might be desirable, or even proper, to consider a further increase in the age of mandatory retirement instead of abolishing it altogether. A model of gradual retirement can also be conceived of, like the model that exists in the Technion, together with abolishing mandatory the retirement age in certain sectors, or limiting the permission to fix a mandatory retirement age to cases in which it constitutes part of an overall pension arrangement. Any solution should take into account a substantial number of factors: the needs of employees, the needs of employers; the effects on the extent of elderly employment, and more. The link between the pension qualifying age and the mandatory retirement age cannot be overlooked either. Increasing mandatory the retirement age – or abolishing it altogether – might, in the long term, lead to an increase in the qualifying age for the receipt of pension benefits (see, for example, the change that has occurred in the United States, where the qualifying age to receive social security benefits is due to rise from 65 in 2000, to 67 in 2022; Shenkar, opposite  fn. 13).

 

            A "polycentric" problem is therefore involved, in which, as a rule, the Court rarely intervenes (see and compare: HCJ 3677/09 Israel Insurance Adjusters Association v. Supervisor of Insurance and the Capital Market (December 7, 2010)). This does not relieve the Court of its duty to analyze the Retirement Age Law in light of the constitutional criteria. Nevertheless, it cannot be ignored that there is a difficulty involved in making a material change to retirement age in one fell swoop. A change of such type necessitates scrupulous preparatory work, the analysis of various factors, hearing opinions from factors in the economy, and anticipating possible broad repercussions. It should be borne in mind that the legislature itself initiated changes to retirement age after its feasibility had been studied in depth by various public commissions.

 

58.       Added to this is the fact that a collective retirement model, which lays down a predetermined, uniform retirement age, has been customary in Israel for many years. Replacing that model with another one, such as a functional retirement model that takes into account the individual particulars of every employee, might substantially affect the employment market. This is especially so if the change were made immediately, further to a judicial decision. In order to illustrate this, I would note that Bank of Israel research has shown that raising the mandatory retirement age and the qualifying age have led to immediate changes in the economy. While raising the retirement age has led to a significant increase in the number of persons employed at older ages, and to an increase in the income of high earners, it has reduced the income of those finding it difficult to integrate in the labor market at an older age (low-income employees and individuals not working), inter alia because they have been unable to plan for it in advance. The recommendation of those conducting the research was, therefore, that if another increase in retirement age is decided upon, it would be appropriate to introduce it gradually (Bank of Israel Report 2014, pp. 129-134, http://www.boi.org.il/he/NewsAndPublications/RegularPublications/Pages/D... see also: Bank of Israel Report 2010, pp. 171-175, http://www.boi.org.il/he/NewsAndPublications/RegularPublications/Doch201...). Having regard to all the aforegoing reasons, it would be inappropriate to find that the legislature exceeded the margin of proportionality granted it.

 

59.       Although not strictly necessary, I would add that the interpretation of section 4 of the Retirement Age Law also affects its constitutionality. As noted, reading sections 4 and 10 of the Retirement Age Law together led the National Labour Court to conclude in the Weinberger case that the Retirement Age Law grants an employee the right to ask his employer to permit him to continue working even after he has reached mandatory retirement age, and that right the employer is required to review the request on its merits and on an individual basis. The Labour Court further held that the same does not mean that the employer must accede to the employee's request, but it must consider it seriously, having regard to all the relevant circumstances. This approach of the Labour Court, in my opinion, gives expression to the need for flexibility in retirement and "softens" the collective model of compulsory retirement, without abolishing it completely. It adds to the balance between the needs of different "players" in the labor market, and is consistent with the retirement mechanism existing in the civil service, which makes it possible to extend the service of an employee beyond the retirement age in certain cases (section 18(a) of the Civil Service (Benefits) Law; the Civil Service (Benefits) Regulations; the provisions of sec. 82.54 of the Civil Service Regulations; Commissioner's Directive No. 8.3 of December 21, 2014; see also: The State Service Commission, Headquarters for Implementation of the Reform, Knowledge Management and Theory Department, Extension of Service Beyond Retirement Age Policy Document (December 2014), http://www.csc.gov.il/Units/Reform/RetirementDoc/index.html#1/z). In any event, the State itself has not objected to the determination that an employer must give individual consideration to a person's continued employment if he has so requested, subject to the same not obliging the employer to grant the request.

 

60.       The Labor Court further held that in considering an employee's request to continue working, the employer must weigh a broad range of factors concerning the employee's personal circumstances, systemic factors of the workplace, and the broader effects on other workers. The Labor Court stated that it was not seeking to lay down a closed list of factors, but that, in general, it would be proper to consider the number of years the employee has worked in the workplace; the extent of his entitlement to pension, and his financial and family situation; the employee's contribution to the workplace; the nature of his job, and his success in performing it. In addition, the Labor Court stated that it would be proper to consider "whether there is objective concern that his competence has declined with age (giving an opportunity for an individual competence test insofar as necessary)"; "whether there is a possibility of transferring him to another job etc."; and also, "whether there is a possibility of continuing to employ the worker in another way, like reducing his position to part time, or making him an independent consultant" (ibid., paras. 66-67). As for myself, I see no reason to detail the considerations because we are not concerned with a request that the employer must accept. In any event, presumably the list of factors will evolve or change from case to case (see also: UA (Tel Aviv District) 9172/09 Cohen v. Bank Leumi Ltd. (August 26, 2014); and see: Tamar Golan, “My Duty to Retire? Your Duty to Consider It,” The Advocate (January 2013) (Hebrew); Avinoam Cohen, "Work Without Welfare: Further to LabA (National) 209/10 Libi Weinberger v. Bar Ilan University," 5 Mivzakei He’arot Pesika – (Hamishpat Online)  7-13 (April 2013) (Hebrew)). Ultimately, it suffices that the mandatory retirement age is not legally obligatory,and that the employer must give consideration to the worker's continued employment after retirement age in order to limit the harm to the employee.

 

            As noted, the Labor Court went on to state that it might be appropriate to interpret section 4 of the Retirement Age Law as making it possible to oblige an employee to retire because of his age only when it is carried out in the scope of an "overall pension arrangement". The Labor Court refrained from defining that concept, but did intimate that arrangements that generally exist in unionized workplaces are involved. The Labour Cort did not rule on the question because, in the case before it, the appellant's retirement was in the framework of a pension arrangement of that type. Again, in the petition herein, I do not believe that we must rule on the issue. This interpretation does not, in my opinion, decide whether the Law is constitutional, and the parties have in any event not made any arguments in that regard. I would note that in this case, as well, the Petitioners' employment is regulated by a collective agreement, which entitles employees to a pension upon retirement.

 

            Consequently, having regard to all the reasons detailed above, I believe that the Law also passes the third test of proportionality.

 

Conclusion

 

61.       I have reached the conclusion that there are no grunds for our intervention in section 4 of the Retirement Age Law. Since the Retirement Age Law was enacted, the retirement age has gradually risen in accordance with the mechanisms prescribed in the Law. Even after full implementation of the Law, the public debate on this issue has not ended. From time to time, the Knesset addresses the issue, and only recently a private member’s bill was resubmitted on the matter of the mandatory retirement age. While the bill proposes prohibiting the fixing of a mandatory retirement age, it does permit the employer to require the employee to retire on reaching retirement age if there is functional unsuitability in his case (Retirement Age (Amendment – Abolition of Mandatory Retirement Age) Bill, 5776-2016). There are other debates on the qualifying age of women (Tali Heruti-Sover, “Galon and Yachimovich Propose: Abolition of Mandatory Retirement and Variable Qualifying Age for Pension,” The Marker (August 27, 2015); see also: The Retirement Age for Women (Legislative Amendments) Bill, 5726-2016). Moreover, as we were informed in the State's notice of February 9, 2015, the issue of retirement age will be referred to the executive branch in accordance with the Government Work Regulations for it to consider whether it is appropriate to review it, including by setting up a commission. And now, it has also recently been reported that the Minister of Finance has appointed a commission to consider increasing the retirement age for women, which will be responsible, inter alia, for considering the possibilities of raising retirement age and encouraging employment of the elderly (http://mof.gov.il/Releases/Pages/presha.aspx). The fact that the issue of retirement age is still on the public agenda reinforces the conclusion that the appropriate place for considering further changes thereto is legislature. Although I have found that the Law does pass constitutional review, it would appear to me that the Respondents did well in deciding to refer this issue back to the Government.

 

62.       Finally, the petition should be dismissed. No order will be made for costs.

 

 

 

Justice Y. Danziger

 

            I concur.

 

 

 

Deputy President E. Rubinstein

 

1.         I concur in the comprehensive opinion of my colleague the President. I would like to add somewhat.

 

2.         In HCJ 4487/06 Kelner v.National Labour Court (2007) I had the opportunity to say (para. 1 of my opinion), as is also appropriate here:

 

            This case raises a question that, apart from being legal, is also a social, moral and humane question that concerns Israel, like other countries, in an age in which, thank God, life expectancy has become longer, as have the abilities of people to work until an advanced tage. On the one hand, there are those who want to enable people to continue working even after the statutory retirement age, on the basis of their functional ability… On the other hand, there are those who regard longer life expectancy as an opportunity for men and women pleasantly to enjoy their free time after retirement as they wish. The Israeli legislature, in enacting the Retirement Age Law, 5764-2004, did not choose the American way, in which there is no obligatory retirement age and the criterion is functional, and it instead chose a method of fixing an age, older than was customary in the past, for mandatory retirement.

 

            Indeed, the subject of retirement age is complex and dynamic. On the one hand, the constant rise in life expectancy and quality of life supports increasing retirement age over the years, and the Petitioners before us are a living example of that. From the economic aspect of the individual as well, increased life expectancy clearly necessitates greater pension contributions, which might be achievable, inter alia, by working for more years and only utilising the pension payments at a later age. See, for example, in this regard, the Bank of Israel Report for 2010 (which was appended to the State's reply of April 4, 2013 – R/4), from which it appears that the ratio between people aged 25 to 64 and those aged 65 or more in Israel was 4.6:1 in 2005; the forecast for 2015 is 4.2:1; and the forecast for 2030 is 3.4:1 (Bank of Israel Report for 2010, p. 175 (2011)). Increased life expectancy is, of course, a blessing in itself. that the statement "sixty  for mature age" in Ethics of the Fathers (5:21) no longer represents typical old age, nor even do older ages,  and we are certainly not dealing with the age at which the Levites stopped serving in the Tabernacle (the age of 50 – Numbers 4:3); see also the determination of 60 years of age in the Torah with regard to the assessment of value (Leviticus 23:3); see also Rabbi Shlomo Yosef  Zevin, L’Ohr Hahalachah, the chapter entitled "Old Age", p. 176 et seq.; see also the comprehensive review by Judge O. Verbner in LabA (National) 209/10 Weinberger v.- Bar Ilan University (2012), para. 13, which is partly based on the review by Rabbi Dr Yaron Unger, Adv. and Prof. Yuval Sinai, “Compulsory Retirement Because of Age in Jewish Law,” The Centre for Practical Jewish Law  (CPJL), 2012 (Hebrew); and see the many authorities cited there. Their review, based on Jewish sources, speaks in praise of the elderly and the duty to exalt their dignity. It further speaks in praise of work, and as regards the Levites, for whom a mandatory retirement age (appropriate to life expectancy then) was fixed as aforesaid, the Jewish law authorities have qualified the rule so that it is not absolute (Maimonides, Laws concerning Temple Vessels 3:8). See also Gordon Ashton, Caroline Bielanska, Elderly People and the Law (2nd ed., 2014), pp. 120-121, as regards equal treatment of pensioners and p. 123 with regard to part-time employment during retirement.

 

3.         In my opinion, insofar as the ratio of the elderly as aforesaid continues to decline, and from the data it appears that the trend is growing, an increase in the retirement age will be a necessity. This derives from the fact that elderly people who are still full of vigour will want to continue working in view of life expectancy and also, and perhaps no less, because of the State's limited ability – which is more and more worrying – to provide real social security to an increasing number of people who are not included in the labor market. This is also consistent with section 1 of the Retirement Age Law, 5764-2004 (hereinafter: the Law), which states that "the purpose of this Law is to establish standard rules with regard to retirement age, including raising it gradually …" (emphasis added – ER).

 

            In Kelner, I added (para. 10):

 

            Indeed, the world of today sanctifies youth, unlike the ancient world that perceived old age as  as a source of experience and wisdom. The media feeds the public success stories of young people, who do of course bring with them charm, freshness and energy; but the the elderly have not reached the end of the road, not only because of longer life expectancy but also because of the ability and need to utilize the knowlege and experience that they have acquired. In the world beyond the “regular” work frameworks there are those who continue to contribute to a great age – in politics, science, the humanities, and more. Take a close look at the Jewish ethos in which old age is perceived as corresponding to wisdom – “with the ancient is wisdom; and in length of days understanding”' (Job 12:12). In the Biblical world, the old were the leaders and in fact, also the judges: “your elders and judges shall go out” (Deuteronomy 21:2). Of the verse “stand up in the presence of the elderly, and show respect for the aged” (Leviticus 19:32), the Sages said (Babylonian Talmud, Kidushin 32:2) “not old but wise, as it is said (Numbers 11:16) 'Gather before me seventy men who are recognized as elders and leaders of Israel' (ultimately the Sanhedrin or Great Court – ER). Rabbi Yossi the Galilean says, not an old man but one who has acquired wisdom, as it is said (according to wisdom,  the wise wise person in the Book of Proverbs, for example – ER) “the Lord possessed me in the beginning of his way' (Proverbs 8:22)”. See also the entry “wise” in the Talmudic Encyclopaedia, vol. 15, 51 (Hebrew). In the Mishna, old age is 60 ("sixty for mature age" (Ethics of the Fathers 8:21), and at the time this was based on the general life expectancy. Nevertheless, there has been increasing awareness of “do not cast me off in the time of old age; forsake me not when my strength is spent” (Psalms 71:9).

 

4.         In view of all this, I believe that it would be best for the relevant authorities to review the concrete retirement age every decade, at most, and whether the changing circumstances are such as to require increasing it. This is connected not only with longer life expectancy, but also social security. I shall refer to this again below. In this respect, leadership must at all times look to the future, beyond the period of its own office. Let me cite an example: in the second half of the 1980s, when I was Cabinet Secretary in the National Unity Government, after in-depth discussions with pension experts and actuaries in the Directors General Forum of the Government Ministries, it was suggested to the relevant ministers that they consider the matter of the pension funds, on the assumption that a crisis concerning lack of coverage would erupt in or about the year 2000. The response was personal. Action thereafter wnet on for very many years in various commissions and government decisions.

 

5.         On the other hand, I believe that the factor of intergenerational fairness, namely the effect of postponing retirement together with the integration of a young labor force in the economy, has been given very significant weight in determining retirement age. Indeed, as the State has noted, this factor might carry less weight at the macro level. That is to say that there are no data indicating that in a satisfactory economy that is growing, raising retirement age will necessarily impair the ability of young people to integrate in the labor market (Report of the Public Commission on Retirement Age, p. 7 (5760-2000)). However it does have effects at the micro level, and the academic institutions from which the Petitioners come are an example. Clearly, given a limited budget, as the age of the lecturers and researchers in the Israeli academic institutions increases, the ability of young lecturers and researchers to integrate in those places, especially as tenured lecturers and researchers,  the much longed-for tenured posts in those institutions, will constantly diminish. Hence, although there can be no question that the Law does infringe a certain element of the Petitioners' right of equality, it is done for a proper purpose, which is to increase the ability of the younger generation to integrate in the employment market. See the statement by President Adler in an earlier case:

 

            I would add that in my opinion, fixing a chronological retirement age does indeed infringe constitutional rights like freedom of occupation and human dignity but it is done for a proper purpose. And what is that proper purpose? Providing a fair opportunity to new participants in the labor market. As such there is a proper balance between the constitutional rights of senior employees and the rights of younger workers from an overall societal point of view (LabA (National) 107/05 Kelner v. Commissioner of the Civil Service, para. 7 (2006); see also the opinion of President Adler in LabA (National) 1313/04 Asa - El v. Al Israel Airlines Ltd, (2006)).

 

6.         And finally – with genuine sympathy for the Petitioners and the worthy self-fulfilment for which they strive – it should be borne in mind that the Petitioners are not merely seeking an increase in the mandatory retirement age, but they are asking that we adjudicate that the very determination of a mandatory retirement age is unconstitutional and, in fact, to require the State to prescribe an alternative model to that existing in the Law, for example a model of functional retirement. We must make our ruling having regard to: the fact that the course that the Israeli legislature has chosen in this connection is no different from that of many legal systems around the world; the considerable disadvantages involved in the prevailing systems, inter alia, in the United States and Britain; the proper purpose underlying the Law, as I mentioned above; and the fact that it is difficult to say that the Law's infringement of the Petitioners' right to equality is so disproportionate as to necessitate the exceptional intervention of this Court, all as stated in the President's opinion. Having regard for all that, the obstacle that the Petitioners had to overcome in order to prove their case was significant, and I do not believe that they were able to do so. However, common sense seeks a balance, and among other things, it is proper and even essential to increase the retirement age from time to time, and also to consider the nature and quality of pension arrangements, the future of which appears to be cause for concern.

 

7.         On reading the opinion of Justice Hendel, I would add that he rightly considered the feelings of someone who has retired from work and feels detached and lacking in dignity. To a certain extent, it can be compared to the feelings of someone who is unemployed, although a retiree knows that he has reached the age at which many good people stop actively working, while as regards the unemployed person who is in mid-life, his lack of work not only affronts his dignity and self-esteem but it also, of course, affects his livelihood with all the implications thereof. There is no need to expound on the importance of work to many people – "When good things increase, those who consume them increase" (Ecclesiastes 5:11), and in the words of the poet H.N. Bialik – "Whom should we thank, whom should we bless?  Labor and work! ". The various plans in the different sectors of the population in respect of old age and leisure, the numerous frameworks for that in the world of culture, Torah and academia, the establishment of a government ministry for the affairs of retirees (now the Ministry of Social Equality), all reflect awareness that longer life expectancy necessitates arrangements for an era in which many people live longer and are also in satisfactory physical and mental condition. Programs must be arranged for them, together with employment for those desirous, either for financial reasons or to occupy their leisure time. Incidentally, in the academic world, after retirement many continue to teach more or less voluntarily and in consideration receive a certain work environment which, perhaps, has no real financial remuneration, but does involve professional and human continuity, and there are voluntary frameworks in other spheres as well.  Therefore, it is very important to uphold human dignity in its simple sense: "The School of Rabbi Ishmael taught: 'And you shall choose life' (Deuteronomy 30:19) – this means a skill," i.e., a profession (Jerusalem Talmud, Peah 1:1); "'so that the Lord your God will bless you' (Deuteronomy 14:29) – you might think that this means even if you sit idle, therefore Scripture states 'in all the work of your hands that you will do' (ibid.) – if a person works, he is blessed, and if not, he is not blessed" (Tanna Devei Eliyahu, 12; Yalkut Shimoni on Psalm 23; cited in H.N. Bialik and Y.H. Ravnitzky, Sefer HaAgadah 1903); "Rav Sheshet said, work is great, because it warms the person who does it" (Babylonian Talmud, Gittin 67b). All of these, ultimately, are human dignity, and see the entry "Human dignity" in the Talmudic Encyclopedia 26 (1907) (Hebrew); see also N. Rakover, Human Dignity is Great (1998) 137. Work therefore leads to life and blessing, and giving expression to it in human life, insofar as it is possible, can only be good. This is true of work, and it is also true of rewarding activity during retirement.

 

 

8.         For the reasons stated above, as aforesaid, I concur in the opinion of my colleague the President. However, I must propose that the matter be reviewed periodically with a view to increasing retirement age in a fair and balanced way. I was therefore pleased to read recently that the Government decided, in June 2015, to charge government agencies with formulating a trial scheme in the scope of the Civil Service for an employment track specifically for senior citizens after retirement age (the review by Mr Kobi Bleich, Senior Deputy Director General for Administration and Projects in the Ministry of Social Equality, State Service Commission Information Booklet, issue 39 (April 2016)). That list mentions that average life expectancy in Israel is currently 80 for men and 84 for women, and see also the survey there by Tzachi Kelner, the Director of the Israeli Retirement Centre. On March 28, 2016 the Minister of Finance also appointed a commission to review retirement age, which was charged with "studying and formulating recommendations in respect of the age at which a woman born in or after 1955 is entitled to retire because of her age… Moreover, the commission was charged with reviewing the implementation of a mechanism for raising retirement age in consequence of longer life expectancy, and also reviewing the application of supportive and supplementary tools for increasing retirement age and encouraging employment of the elderly" (from an approach to the public by the Commission for the Review of Retirement Age, Calcalist, Nissan 9, 5776 (April 17, 2016), emphasis added).

 

 

 

Justice U. Vogelman

 

            I concur in the comprehensive opinion of my colleague President M. Naor and with the comments of my colleague Deputy President E. Rubinstein.

 

            In my view, as well, the provision of the statute that is at the center of the current debate passes constitutional review, based on the analysis detailed in the opinion of President M. Naor. I would emphasize that, in my opinion, the ruling that the employer must give consideration to the worker's continued employment after retirement age – in order to limit the harm to the employee – is an element of considerable weight when examining the balances in the framework of the third subsidiary test of proportionality.

 

            As my colleagues make clear, sealing the legal debate at the present point in time does not put an end to the public debate, or to continued deliberation by the executive branch. In that context, the latter will also consider whether the time is ripe to review the issue.

 

            Subject to these remarks, I concur, as stated, in the opinion of President M. Naor.

 

 

 

Justice D. Barak-Erez

 

1.         I concur with my colleague President M. Naor that the petition should be dismissed. The statutory arrangement that makes it possible to require an employee to retire on attaining the age defined as retirement age provokes dilemmas and questions that will presumably remain on the public agenda. That is only proper. However, it cannot be said that it infringes rights so disproportionately as to justify the intervention of this Court in the scope of a constitutional review of a statute.

 

The Point of Departure: A Reasoned Infringement of Equality

 

2.         Let me first say that, like the President, I also believe that an arrangement that prescribes that a person can be compelled to retire merely because he has reached a particular age does involve an infringement of equality. A distinction based on mere age is one that is founded on a generalization that reflects a social perception in respect of older people who have passed a certain age, as opposed to a distinction based on an evaluation of the relevant individual's abilities. In that respect, I also believe that the Petitioners are right that the determination of a mandatory retirement age is not problem free. However, ultimately, I believe that this infringement of equality is, in the instant case, based on good reasons and passes the tests of constitutional review.

 

3.         In fact, the State presented three central reasons to justify the present arrangement – the fact that the determination of a mandatory retirement age is in the interest of employees generally; the contribution of the arrangement as regards "intergenerational fairness"; and its contribution to the planning and renewal of the workplace as regards the employer's interests. All these are reasons with fairness and logic on their side, that have also been recognized as justifying retirement arrangements in the precedents of courts elsewhere in the world, as the President showed in her opinion. Moreover, they are not based on general assumptions with regard to the incapacity of elderly people, that is to say that they are not tainted by ageism. Nevertheless, I would emphasise that I personally believe that the most important of the said reasons, which for me tips the scales, is the argument concerning the contribution of retirement age to the rights of retirees themselves. Although the reasons of "intergenerational fairness" and the ability to plan the workplace are important, these are interests, the protection of which when they infringe the right of equality, raises questions that I do not believe arise in respect to the argument concerning protecting the rights of workers themselves. This is therefore not a case of infringing rights merely for the promotion of important public interests, but it is a case in which there is a clash of two clear aspects of the protection of the rights of elderly workers, and even of different groups of elderly workers.

 

4.         Several advantages of the fixing of a mandatory retirement age can be indicated from the perspective of the rights of workers themselves. First, as the State rightly argued, the mandatory retirement age creates the effect of a "protective shelter" over the heads of elderly employees, in the sense that it creates a presumption against terminating their employment before they reach retirement age, especially as they approach that age. Second, the existence of a retirement age "on the horizon" substantially weakens the incentive of employers to initiate general competence tests for employees, which might be significantly strengthened in circumstances in which the decision to terminate employment necessitates an indication of functional difficulty or handicap. Indeed, even now there are such tests in certain places, but they are not the rule. It is important to note that such tests, despite perhaps serving legitimate interests of the employer, might cast a shadow of unease over the workplace, and in any event "color" any retirement decision with incompetence. Despite the Petitioners' arguments, currently an employee who retires from work does so without his leaving work representing any negative judgment about his ability to continue working. That is essentially different from retirement based on a determination – difficult and painful for the relevant employee, especially having regard to the fact that it is given public expression – that there is a decline in his function and competence. Third, and no less important, without acknowledging the legitimacy of mandatory retirement age, the willingness to grant tenure to employees, or even to reach partial job security arrangements will be weakened to a great extent. The ability to acquire tenure is of great importance to many employees since it enables them to plan in advance for the long-term, and contributes to their emotional welfare. The abolition of mandatory the retirement age might, therefore, affect job security, which is also an interest that is dear to many workers.

 

The Limits of Judicial Review in Areas that Necessitate Complex Legislative Arrangement

 

5.         The Petitioners argued with great self-assurance that the alternative based on the employee's functional testing is preferable to the determination of a standard retirement age. However, as explained above, there are also substantial reasons that weigh against this. The question of which is the preferable retirement arrangement – that based on a retirement age norm or one based on the employee's functional testing – is one that remains the subject of controversy, and there are arguments both ways. As for myself, I believe that the advantages of the arrangement that sets a mandatory retirement age are preferable for the reasons that have been detailed, as I shall explain below. However, it is important first to say that we do not need to decide which is the desirable arrangement. That question is first and foremost a matter for the legislature, which should deliberate and rule on policy questions that are characterized by being "polycentric", as the State has rightly said (see: HCJ 7721/96 Israel Insurance Adjusters Association v. Supervisor of Insurance, IsrSC 55 (3) 625, 645 (2001). For the source of that expression, see: Lon L. Fuller, “The Forms and Limits of Adjudication,” 92 Harv. L. Rev. 353, 394-404 (1978)). The question that has been put to us is one of the "second order" – whether prevailing legislative policy involves a disproportionate infringement of rights to an extent that necessitates judicial intervention. In my opinion, too, the answer to that question is in the negative.

 

6.         As the President stated, the comparative examples that have been presented to us concerning the erosion of the mandatory retirement age regime in other countries in fact support the decision to dismiss the petition. From those examples, it appears that changes affecting the mandatory retirement age arrangement have mainly been made by legislation. In the major examples cited , the courts found it inappropriate to invalidate mandatory retirement age arrangements, and the changes in that area have been made through the legislative process, on the basis of social debate and persuasion in the public arena (in the United States, the claim of discrimination by virtue of the determination of retirement age was dismissed in Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976), and the change in the legal situation was made in a 1986 legislative amendment to the Age Discrimination in Employment Act; in Canada, the argument that the determination of retirement age does not meet the constitutional standard for the protection of rights in accordance with the Charter was dismissed in McKinney v University of Guelph [1990] 3 S.C.R. 229, and then a 2012 amendment to the Canadian Human Rights Act abolished the determination of retirement age as deviating from the prohibition of age discrimination; in Britain, the general recognition of mandatory retirement age, called the "default retirement age", was abolished in 2011 in the scope of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (hereinafter: the 2011 Regulations), which revised the general law on equality (the Equality Act 2010) so as also to apply to retirement arrangements.

 

7.         Regulating the issue of retirement age in legislation makes it possible to do so comprehensively, with reference to associated economic and employment aspects as well, including insurance and pension factors. Thus, for example, in Britain in the scope of the 2011 Regulations, alongside the repeal of compulsory retirement because of age, it was established that employers can make different insurance arrangements for employees who have reached state pension age or have passed the age of 65, whichever is the higher. More generally, the relevant legislation in various different countries leaves room for exceptions, a matter that is also suitable for legislative arrangement and necessitates the laying of a broader foundation than has been laid before us.

 

8.         To this it can one may add that – unlike what is implied by the petition – the abolition of mandatory retirement age does not necessarily also mean individual competency examination of every single employee in all workplaces. Even in countries where mandatory retirement age is not customary, examples can be found of the determination by various employers of arrangements that do include an element of mandatory retirement age, and it has also been held that there is no bar to doing so – so long as there is good justification (or in our constitutional language, when the same is done for proper purposes and insofar as the means prescribed are proportionate). Thus, for example in Seldon v Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16, the British Supreme Court held that the determination of retirement arrangements for the partners of the particular law firm had been done for a proper purpose (in the circumstances, the proportionality of the arrangements that were prescribed was left for later litigation). Indeed, that judgment revolved around events that occurred at a time when the British legislation recognized mandatory retirement age, but the principles that were delineated in it are also regarded as having guiding value in the review of retirement arrangements made in the context of the new statutory position.

 

The Possible Effects of abolishing the Retirement Age on Employees' Rights in View of the Diversity of the Labor Market

 

9.         As stated, the most persuasive reason, in my view, for finding that the arrangement involved in the petition passes the proportionality tests is the protection of workers themselves. In this connection, the Petitioners made two main arguments. First, they asserted that the abolition of the mandatory retirement age is not likely to affect those workers who, in any event, do not benefit from tenure, the proportion of whom in the current labour market is significant. Secondly, they argued that, in any event, even if the arrangement of mandatory retirement age is beneficial for some workers, it is not of benefit to the Petitioners, and the infringement of their rights for the sake of other workers cannot be justified. As for myself, I believe that neither part of this argument is persuasive, as explained below.

 

10.       First, I believe that although the abolition of a statutory retirement age is first of all likely to have an effect of eroding existing tenure arrangements (and is therefore problematic for those who are employed where tenure arrangements are customary), there is basis to believe that it might also affect employees in workplaces where there are no tenure arrangements at all. The reason for this is the concern, which is of course regrettable, that various employers "will seek a reason" (whether or not they formally need to indicate such a reason) to terminate the employment of relatively old employees in circumstances where there is no foreseen date for the end of the contract of employment. In that sense, it appears that a mandatory retirement age helps workers who do not enjoy tenure. In this connection, it should also be noted that the overall interests of those workers have not been presented to us, which also makes it difficult to accept the argument that the harm to workers who do not enjoy tenure is limited.

 

11.       Secondly, one cannot accept the assertion that the arrangement of mandatory retirement age has not been of benefit to the Petitioners. The question whether the arrangement of mandatory retirement age has been of benefit to the Petitioners themselves cannot be asked after the event ("ex post"), at the present point in time when they want to continue working, knowing their health and employment situation, after they have "enjoyed" the advantages of the arrangement. That question should be considered looking to the future ("ex ante") – would the Petitioners and others like them be rewarded by having entered a labor market in which there were tenure arrangements and in which they have not been subjected until retirement age to functional examinations that affect their employment stability (as opposed to evaluations that affect promotion)? The contribution of mandatory retirement age should, therefore, be examined when the parties to the discussion look at the question through "the veil of ignorance", when they do not know whether they have been successful employees, enjoying good health and sheltering under comfortable tenure arrangements. The question is what position could have been taken in view of the possibility that they were employed in less comfortable work, and perhaps their health or performance was impaired to some extent before reaching the age at which they had to retire in accordance with the arrangements in their workplace. One way or the other, I believe that specifically in the context of general labour arrangements, it is right and proper to consider their contribution to workers with a broad view that goes beyond the bounds of the autonomous wishes of the specific employee.

 

12.       In fact, opinions have been expressed in the legal literature that recognize the legitimacy of arrangements that include an element of mandatory retirement age when those involved are employees who receive "consideration" for that element in their terms of employment, in the form of tenure and adequate pension arrangements (see Sharon Rabin-Margalioth, “Age Discrimination in Israel: A Power Game in the Labor Market,”,” 32 Mishpatim 131, 174 (2002) (hereinafter: Rabin-Margalioth). For an approach that supports the same but with more limitations, like making it possible for employees who are so desirous "to leave" the collective arrangement, see for example: Pnina Alon-Shenkar, “The World Belongs to the Youth: On Discrimination against Senior Workers and Mandatory Retirement,” in Liber Amicorum Dalia Dorner Book81, 139-141 (Dorit Beinisch et al. (eds.) 2009) (Hebrew)). The aspect of collectively arranging retirement age was also emphasised in a case of the European Court of Justice (see: Palacios de la Villa v. Cortefiel Servicios SA, C-411/05 [2007] ECR I-8531).

 

13.       Under the circumstances, in my opinion there is also some importance to the fact that the Petitioners only challenged the mandatory retirement age arrangement after they reached retirement age, despite the fact that, prima facie, they could have put it to the test in the past, while they actually enjoyed the tenure arrangements (and it should be reiterated that the Law in its present form – the Retirement Age Law, 5754-2004 – was enacted several years before the Petitioners reached retirement age). In other words, the petition was brought by those who for years enjoyed strong tenure arrangements, and are now seeking to avoid paying the bill (see: Rabin-Margalioth, p. 159).

 

14.       To all the foregoing we should add reference to the characteristics of the Petitioners' workplaces – institutes of higher education. Although this petition is being heard as a general one against the principle of mandatory retirement age, it cannot be ignored that the case of the Petitioners– university professors – also raises other difficulties concerning the importance of protecting the academic freedom of the faculty members of those institutions. The tenure arrangements existing at the universities protect not only the welfare of the academic faculty, but especially their freedom so that they can conduct research and fearlessly express their professional opinions. Abolishing retirement age in a way that might erode the tenure arrangements would yield a less protected academic environment, and might also lead to the infringement of another important public interest. In fact, this point also illustrates that the determination of a mandatory retirement age involves other arrangements, such that its abolition by the Court might have repercussions that have not been made clear to us.

 

15.       Also of importance is the fact that the Petitioners' workplaces are specifically public institutions, as opposed to workplaces that clearly belong to the private sector. In fact, in some of the countries were the mandatory retirement age has been abolished, the identity of the employer (as "public" or "private") is of significance as regards evaluating the justification for determining a mandatory retirement age, which is regarded as more acceptable in the public arena. It should be noted that the private member’s bills that have been submitted on this subject (see for example: The Retirement Age (Amendment – Abolition of Mandatory Retirement Age) Bill, 5773-2003) include the possibility of authorizing the Minister of the Economy to exclude "certain spheres of work".

 

16.       Hence, the Petitioners fall within the scope of the cases that are regarded as less "difficult" as regards the constitutional questions that the determination of a mandatory retirement age raises, even according to those who believe that mandatory retirement age arrangements do raise difficulties.

 

Other Aspects of the Legal and Public Debate Looking to the Future

 

17.       A distinction should, of course, be drawn between the principle of mandatory retirement age and the aspects that concern its implementation. The petition did not address the question of the proper retirement age having regard for longer life expectancy. It might be right to consider increasing retirement age, as my colleague, Deputy President E. Rubinstein mentioned. However, such a decision would concern the implementation of the principle, as opposed to the principle itself, against which the petition is aimed. It is important to emphasize that the Petitioners did not focus on the specific retirement age prescribed in the Law, and that has therefore not been examined by us.

 

18.       Furthermore, as the President has emphasized, recognizing the constitutionality of the retirement age does not relieve the employer of his obligation to consider the possibility of continuing the employment of a worker who seeks not to retire. This takes account of numerous factors, including the ability of the employee, how essential he is to the workplace, and even the extent of the pension rights accumulated by him so that he can live with dignity after retiring from work. The discussion appropriate to these questions is therefore a contextual one in the circumstances of each individual case, as distinct from a general discussion like that which conducted before us.

 

19.       Incidentally, I would raise another point for consideration, which does not tip the scales against the petition, but should be examined as part of the repercussions of any future retirement age reform. Formally, the question before us revolved, as noted, only around the constitutionality of the determination of a mandatory retirement age, as opposed to recognizing the institution of retirement age, namely permitting the worker to retire on attaining a certain age, an option that not a few employees would like. From the point of view of many employees in the economy, the possibility of retiring at a certain age is a blessing; an aspiration for which they long after years of wearying work – physically, emotionally or mentally. In fact, historically, the determination of a retirement age is regarded as a social innovation that only began at the end of the 19th century, but mainly in the 20th century. Before then, it was a benefit to which workers could not aspire. They had to work "until death" unless they had the means to enjoy retirement, which was considered a luxury. The determination of a retirement age therefore went hand-in-hand with the development of welfare and pension schemes that were intended to ensure a source for the subsistence of workers on reaching retirement age. Prima facie, this is a separate issue. The Petitioners say: those who want to retire, should retire and those who want to carry on working, should work. From the purely analytical perspective, that is correct. However, having regard to the broader social context, it is only partially correct. If retirement age could be chosen by the worker, there might be an erosion in the development of pension arrangements available to workers upon their retirement. Such a state of affairs would sharpen the view of retirement as a privilege that might not be appropriate if the employee and the economy "cannot afford" it. Alongside the concern of "being cast aside in old age", there is therefore concern for workers being thrown back into the world without an adequately protected retirement, with all the related implications.

 

Conclusion

 

20.       In concluding, let us go on to mention that discrimination for reasons of age is illegitimate. Moreover, ageism is an ugly social phenomenon that should be opposed. Our judgment in this case is not based on an assumption as to the incompetence of workers who have reached retirement age, and needless to say that the same also goes for the Petitioners themselves. Nevertheless, the arrangement of mandatory retirement age is a complex one that also involves the protection of rights, where that protection is viewed in its broad sense, going beyond the protection of the individual employee's freedom to decide.

 

21.       I therefore believe that the petition should be dismissed, although the matter raised by it should continue to be examined in the public arena.

 

 

 

Justice E. Hayut

 

            I concur in the comprehensive opinion of my colleague President M. Naor and the conclusion reached by her that the model of compulsory retirement because of age established in section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Retirement Age Law), and its preference to other models, like that of functional retirement, which the Petitioners support, is not unconstitutional to an extent that justifies the repeal of the section.

 

1.         As my colleague the President stated, each of these models has advantages and disadvantages. They have been set out at length in her opinion, and I have therefore not considered it appropriate to repeat them (see also in this regard, HCJ 7957/07 Sadeh v. \Minister of Internal Security, para. 13 (September 2, 2010)). Indeed, making an employee retire merely because his or her age has been fixed as the retirement age is one of the most injurious phenomena of age discrimination (see: HCJ 1268/09 Zozal v. Israel Prison Service Commissioner, para. 15 (August 27, 2012) [[English: http://versa.cardozo.yu.edu/opinions/zozal-v-israel-prison-service-commi...  (hereinafter referred to as "Zozal")). However, as my colleague the President showed, the regime of compulsory retirement because of age passes the tests of the Limitation Clause in section 8 of Basic Law: Human Dignity and Liberty and is therefore not constitutionally invalid. Among the grounds justifying the present arrangement, in my opinion the one that ought to be emphasied is that concerning the aspects that are beneficial to workers generally, and in that I am in full agreementwith my colleague Justice D. Barak-Erez. The legislature's provision in section 4 of the Retirement Age Law that 67 is the mandatory retirement age for men and women, implies a statement that, in general, the employer's terminating the labor relationship before the employee has reached that age is illegitimate. The legislature thereby set a clear criterion that helps eradicate phenomena of discriminating against workers because of their age before they reach mandatory retirement age, while transferring the discretion concerning the time of the employee's retirement to the employer on the basis of competence and function tests does not set such a clear criterion and might legitimate employers' requiring employees to retire even before they have reached the age of 67. My colleague the President therefore rightly said that "mandatory retirement might reduce the number of workers who are discharged from the workplace before the normal retirement age" (para. 43 of her opinion). This conclusion is all the more important in view of the fact that the majority of workers in the economy are employed under personal contracts, and not protected by unions and collective agreements (Mundlak G, Saporta I, Haberfeld Y, Cohen Y, “Union Density in Israel 1995-2010: The Hybridization of Industrial Relations,” 52(1) Ind Relat. (Berkeley) 78 (2013)). The labor relationship between an employer and an employee who is not unionized leaves the worker without collective protection in the event of unlawful dismissal. In that situation, the general law of contracts, as well as shield legislation come to the aid of the employee (Guy Mundlak, “The      Rule    on        Dismissals: Default           and      Mandatory     Rules, and      Some  Interim Options,”  23 Iyunei Mishpat 819, 822 (1999)). In that sense, section 4 of the Retirement Age Law can be regarded as one of those  statutory shield provisions that regulate clear criteria with regard to the employer's ability to dismiss an employee (as regards the shield provisions of the Retirement Age Law, see also section 10 of the Law, and as to the duty owed by the employer to give substantive consideration to the employee's request to remain at work after retirement age, see: LabA (National) 209/10 Weinberger v. Bar Ilan University (December 6, 2012)).

 

2.         The petition before us has again placed on the legal agenda the fact that the labor market in Israel, and in fact the whole Western world, is undergoing far-reaching changes in view of the increase in life expectancy, while maintaining levels of competence and function at work at more advanced ages than in the past. These changes have significant economic and social implications, and necessitate rethinking, inter alia, with regard to retirement age, and perhaps also with regard to the appropriate model to be adopted in that respect. In any event, the trend apparent in Israeli law is a clear one of increasing retirement age for both men and women (Zozal, para. 25), and the Israeli legislature may continue to adapt the relevant legislation to that trend.

 

 

 

Justice N. Hendel

 

          I concur with the result reached by my colleague President M. Naor, according to which the petition to strike down section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Retirement Law), requiring an employee to retire at the age of 67, because of its unconstitutionality, should be dismissed. Nevertheless, there are nuances that distinguish us. In my opinion, they are of importance especially in regard to the future – and old age has a future – and I have therefore deemed fit to present them.

 

Discrimination on the Basis of Age – Innovation, Uniqueness and Gravity of the Infringement

 

1.         The prohibition of discrimination – or as formulated on the positive side of the coin, the protection of equality – is a developing doctrine. The canopy of equality is expanding. Consequently, distinctions between different groups, based on some or other characteristics, that used to be socially or legally acceptable without question or a second thought, are no longer such at present. One of the examples of this is age as a basis for discrimination in the labor market.

 

            Historical, economic, social and legal changes have led to the status of the "working elder" experiencing many changes over the years. Prof. Ruth BenIsrael, in her article (Ruth Ben-Israel, “Retirement Age in light of the Principle of Equality: Biological or Functional Retirement”, 43 Hapraklit 251, 253-257 (5757)) described the position in the following way: in the distant past, the status of the elder was lofty and exalted and he was regarded as having power, status and influence. It can further be said that in those years the elderly were distinguished from the rest of the population, but "discrimination for the better" was involved. In the opinion of the learned author, in the 18th century there was a sharp decline in the social image of the old, who came to be identified with inaction and dependence upon others. This, of course, also affected his position in the labor market. The trend intensified in the 20th century, during the period that Prof. Ben-Israel calls "the cult of youth". The metamorphosis in the labor market – like the disappearance of certain professions, and new, mainly technological, professions that have replaced them – has necessitated constant change that has mainly affected the elderly who are employed in the waning professions, and displaced them from the market. These days, and especially in very recent years, the pendulum has been swinging, slowly but surely, back to the other side. That is to say that opinions are being aired and research conducted that seek to emphasize the value – to workers and society in general – involved in the employment of older workers, inter alia, in view of the experience and professionalism that they have accumulated.

 

2.         The foregoing description is, of course, a very brief summary of very significant moves and shifts. Nevertheless, it would appear that it suffices to illustrate what I began with: reference to discrimination (or equality) is dynamic and so too – and perhaps especially – in respect of age. This is true in at least two senses: first, the index of social sensitivity. In recent years there has been far greater sensitivity to discrimination on account of age and its legal and constitutional implications in the labor market, as well. As Fredman stated, the idea that differentiation based on age might be unconstitutional is a "new phenomenon", driven by the ageing of the population and the declining birthrate (S. Fredman, Discrimination Law, 101-102 (2002)). The increasing prominence of individual rights in recent decades, and the importance attributed to them in liberal countries have, of course, also contributed to the shift.

 

            Second, the extent of the infringement – age discrimination in the context of the labor market involves extensive, deep violation of emotions, fundamental rights and values that are at the heart of the system. Like my colleague President M. Naor, I too believe that in the circumstances of the petition there is an infringement of equality, which amounts to an infringement of human dignity. Indeed, ", in the case before us, we are not concerned with a trivial infringement ’ (para. 33 of the President's opinion). However, in my opinion, a much broader, more deeply rooted infringement is involved, which ought to be emphasized. The description by Justice I. Zamir in HCJ Recant in respect of discrimination concerning retirement age and its accompanying affront is apt in this regard: "a person who was active and effective, involved and useful is suddenly, in his own eyes and the eyes of those around him, made irrelevant (HCJ 6051/95 Recant v. National Labour Court, IsrSC 51 (3) 289, 342 (1997)). In addition, in my opinion, the infringement of equality – which amounts to an infringement of human dignity in the instant circumstances – is not the only violation. The freedom of the individual to work, create and express himself, which reflects another salient aspect of human dignity, is also infringed here, and substantially. And not only is there an infringement of equality, dignity and the freedom of occupation, but also of liberty and autonomy.

 

            The severity of the infringement essentially derives from a combination of the following: first, the major place that work has in our lives, and its being a means of self-fulfilment for many, beyond its being a source of income. This can also be learned from Jewish law. "Shmaayah would say: Love work" (Ethics of the Fathers 1:10). Of that Rabbi Eliezer said: "Work is so important that even Adam tasted nothing until he worked, as it is said,‘and placed him in the Garden of Eden, to till it and tend it (Genesis 2:15)" (Minor Tractates, Avot de-Rabbi Nathan, Recension B, Chapter 21). Rabbi Soloveitchik also wrote on this: "there is no doubt that the term 'image of God' in the first account refers to man's inner charismatic endowment as a creative being. Man's likeness to God expresses itself in man's striving and ability to become a creator. Adam the first who was fashioned in the image of God was blessed with great drive for creative activity and immeasurable resources for the realization of this goal" (Rabbi Joseph B. Soloveitchik, “The Lonely Man of Faith,” 7 (2) Tradition 5, 11 (1965). Second, the understanding that leaving the labor market is caused merely by reaching a particular age, in circumstances independent of the worker, which he cannot avoid. The creation of distinctions between people because of characteristics at the very heart of the definition of being human, over which he has no control – like race and sex – constitutes a salient sign of illegitimate discrimination, that might involve arbitrariness. In this sense, age might belong to that list of characteristics that are "forced" on a person. Moreover, ageism has other characteristics that might aggravate the infringement, For example, it is not static, but a variable that worsens.

 

Another related point is the difficulty of protecting against the infringement caused by age discrimination. There are several reasons. The first, the boundary between "equal" and "different" is not so clear with age, compared with other characteristics, which leads to vagueness. Expression of this can be seen in the fact that European law recognizes all age groups as groups that are protected against discrimination, while the 1967 statute in the United States extended the protection against discrimination based on age only to those aged 40 or more (see Fredman, 101). The second derives from the universal nature of the characteristic of age. The aspiration is for everyone to experience the whole "cycle of life". In the words of the wisest of men, "one generation goes and another generation comes" (Ecclesiastes 1:4). However, specifically because of that, there is a tendency to minimize the severity of the infringement caused by age discrimination. This is because it appears that there is "equality of infringement". That is to say that age discrimination is unkind to a person at a certain stage of  life, but might be kind to him at other stages. The matter is complex and even creates something of a contest of rights between generations, and even between man and himself at different times of life. However, constitutional review stands at the ready, and the story of man’s life does not prevent him demanding his rights, dignity and liberty at any given time.

 

            One should, of course, take care to avoid discrimination in all its forms, but it appears to me that the unique aspect of age discrimination is such as to affect the way in which the matter is analyzed and looked upon. With all the importance of a broad view of society and the general public, it should not be forgotten that Basic Law: Human Dignity and Liberty places the emphasis on the individual. There are people who welcome and accept the obligation to retire at a given age with open arms. The question when to retire at the upper limit does not have to be decided by them. There is acceptance and even, perhaps, peace in the knowledge that it is not to be determined by them. It is perfectly possible to create in different ways, not merely at work. That is certainly a legitimate approach. But alongside this there are also people for whom there is a close link between their definition of self and their contribution through work. And suddenly, bidden by the calendar, they have to break the link completely. This is despite the fact that some of them are still able and willing to contribute, even at a high standard. Time, which is man's dearest asset, seeks alternative substance but in vain. Such a person can feel worthless, lonely and even degraded. He might also feel that he is outside the main fabric of society, and as we know, it is sometimes very cold outside.

 

            And note well that I concur with my colleague the President's statement that constitutional review of legislative arrangements that delineate far-reaching social and economic policy necessitates extreme caution (para. 24 of her opinion). Indeed, the problem that the petition presents is "a polycentric' one in which as a rule the Court rarely intervenes" (ibid., para. 57). I further agree that the very determination of a mandatory retirement age is supported by proper purposes: the protection of workers' dignity and the improvement of job security in the economy; granting the employer certainty and stability and the ability to manage and plan manpower in the workplace; and intergenerational fairness (paras. 38-40 of the President's opinion). Despite all the aforegoing, and perhaps specifically because of it, I have considered it appropriate to emphasize and concentrate on the gravity of the infringement of the values and rights on the agenda. Based on the President's persuasive reasoning, I have not found intervention appropriate in the present petition, especially because of job security. Nevertheless, as regards both the real and the ideal, this result is far removed from being the final word.

 

The Choice between Different Models, and the Necessary Broad Factual Basis

 

3.         In accordance with the way in which matters have been presented by the Petitioners, my colleague the President's opinion concentrated on the question of which of the two models should be chosen: biological retirement or functional retirement. From that point of view, a contest is evident between two different philosophies, two ends of the spectrum, each of which is fair and reasonable. Each of the conflicting philosophies has advantages and disadvantages, as described at length by my colleague. It should also be noted that the point of view of the employee does not necessarily oblige the adoption of biological retirement rather than functional retirement, or vice versa. Thus, for example, the term "dignity" can serve both conflicting approaches: compulsory retirement does involve some infringement of the employee's dignity, as described above, but such infringement might also occur, albeit practically, when he is subjected to competence tests.

 

In any event, for the reasons detailed at length in her opinion, my colleague believes that the legislature's choice of the first of the two models is legitimate and passes the hurdle of constitutionality. As I see it, insofar as we must choose between the two options against the overall background that has been presented to us, that conclusion is indeed required. Nevertheless, I do not believe that the present situation is a desirable one that exhausts the choice. In my opinion, the time is right to expand the discussion about the range of different possibilities, if only because of the uniqueness and complexity of the matter. Before going into detail, I would make it clear that I am aware that the choice of the biological retirement model in our system is not located right at the end of the spectrum, because there are certain qualifications and subtleties. First, section 10 of the Retirement Age Law, 5764-2004, establishes that, with the employer's agreement, it can be agreed " that the age at which an employee can be required to retire from work because of age shall be higher than mandatory retirement age ". Secondly, in Weinberger (LabA (National) 209/10 Weinberger v. Bar Ilan University (December 6, 2012)), the Labor Court held that if the employee wishes to continue working after the age of 67, the employer is obliged to give relevant, individual consideration to that request. Nevertheless, in view of the complexity of the matter and the gravity of the infringement, I do not believe that those qualifications and subtleties are adequate in the circumstances.

 

4.         To be more precise, as the President stated (para. 46), there is a wide range of retirement arrangements between the model of compulsory retirement because of age and the model of functional retirement. Alongside the examples that were cited (ibid.), and with the object of expanding, I shall refer to three matters: the first, other arrangements; the second, greater focus on different jobs; and the third, the arrangement of a comprehensive, up to date examination of the issue.

 

            As regards other arrangements, it would appear that one solution is to increase retirement age. This point is important, but I would like to augment it. In my opinion, an approach should not be taken whereby one size fits all. As aforesaid, the issue should be examined as a whole, not merely through the lens of dignity, but also through the lens of liberty. If the social security that is expressed in tenure is what necessitates retirement at a fixed age, one can also think of a model whereby the employee chooses between different types of benefit at different stages of his life and career. In that sense, the age at which the employee starts working at a particular workplace might be important. These are, of course, mere examples to indicate that it is necessary to think outside the box.

 

            As regards focusing on different jobs, the case before us in fact illustrates the point. Working as a professor in academia has certain characteristics (regarding which, see the opinion of Justice D. Barak-Erez). Indeed, new ideas can be raised in this work environment. For example, evaluation mechanisms can be formulated in the universities for professors who have tenure (and there has been such experience, for example, in the United States. See: Samuel Issacharoff & Erica Worth Harris, “Is Age Discrimination Really Age Discrimination? The ADEA’s Unnatural Solution,” 72 N.Y.U.L Rev. 780, 790 (1997)). The existing mechanisms can be expanded in the form of enabling professors in academia to work solely in research or solely in teaching, also in a limited format, for example, in accordance with such criteria as would be decided. Here again, because of the complexity of the matter, an approach should not be taken according to which one solution is suitable for everyone. Among other things, it is necessary to examine whether a private or public workplace is involved, whether the employees there enjoy tenure or other job security, the economic implications of the various different alternatives – both to the employee and the employer, and to the market as a whole, etc.

 

            This leads us to the third point – a comprehensive, up-to-date examination of the issue. The choice between biological retirement and functional retirement is "forced" upon us by the petition in the absence of adequate foundation in support of other alternatives (see also para. 46 of the President's opinion). Although the fundamental controversy surrounding these matters in the public arena, with all its complexity and characteristics, does indeed support the conclusion that it is not for us to intervene now, it does appear to me that it is proper, necessary and even vital to lay down a broad, thorough and up to date factual foundation. The effect of mandatory retirement age on emplyees' standing, and on the labor market as a whole, is a highly complex issue that is context and society dependent. The answer requires social-science evidence, adapted to the prevailing economic, social and legal system. Evidence of that type has not been produced to us, but it should be made clear that no criticism of the parties' attorneys is implied thereby. A comprehensive, up-to-date examination requires proper supervision and resources. Individual workers cannot be expected to perform that task. The importance of the contribution is in actually raising the matter, and perhaps indicating what is deficient. In my opinion, a public commission, composed fro various areas, should be established in order to collect the relevant material, including empirical data, and hear testimony, and it should recommend proper policy for the current period.

 

            In order to illustrate the dimensions of the deficiency, it should be borne in mind that the recommendations of the public commission that was appointed to examine the issue of retirement age, together with its social and economic aspects, headed by Justice (Emeritus) Shoshana Netanyahu were submitted in 2000. The Commission itself was appointed back in 1997, some two decades ago. The Netanyahu Commission sat and deliberated the various different factors and the possibilities on the agenda for changing the mandatory retirement age, including the possibility of abolishing it altogether. However the Commission's work – comprehensive and thorough as it was – is far less relevant now, a generation after it convened (see and compare the opinion of my colleague Deputy President E. Rubinstein, according to which there should be an examination every 10 years). The assumptions and data upon which it relied, like the labor market in general, have changed. In my opinion, that fact necessitates an organized and thorough rethink – and as soon as possible. I therefore wholeheartedly join in the opinion of my colleague Justice E. Hayut, in para. 2 of her opinion.

 

To this we might add that the approach of different countries, that served, inter alia, as a source of comparison for the Netanyahu Commission, changed a few years ago, primarily afger the Commission's recommendations were submitted (in 2000). In some of the countries there has been a major change in outlook, in the same direction – namely the abolition by legislation of a compulsory retirement age (subject to certain exceptions, see para. 55 of the President's opinion). This has happened, for example, in England, where mandatory retirement in numerous sectors, including institutes of higher education, was abolished in 2011. In Canada too, mandatory retirement (in the public sector) was abolished in 2012.

 

As I have mentioned, I am conscious of the fact that issues of the type that the petition involves are dependent upon concrete context and society. For that reason, among others, extreme care should be taken when drawing analogies through comparative law. Another reason can be that social sensitivity in regard to social security is greater in Israel than it is, for example, in the United States. Nevertheless, it does appear to me that the tool of comparative law can also assist us in the complex issues facing us, provided that it is used in a careful, measured manner. Just as the experience of a worker in a particular job is of value, so too, is the experience of various different legal systems, even if it is necessary to make certain adaptations to the conditions of the country and its labor market.

 

5.         In conclusion, my opinion is that the legislature's choice of a compulsory retirement model because of age, at the time, reflected an informed choice among different possibilities. Changing times and developments along the way, the severity of the infringement involved in compulsory retirement, which is at the heart of man and his sense of self, the sensitivity of the matter and its complexity that is dependent upon context, society, and concrete, up-to-date data all now necessitate a thorough review by the legislature (and perhaps also by certain workplaces like universities), and an ensuing informed choice. Insofar as such a review is not made within a reasonable time, in my opinion the parties' arguments should be reserved. We, as a society, ought to properly contend with the issue and consider it in the best way, as required. This is especially the case in our day and age when not only is life expectancy changing, but so is the way in which quality of life is perceived. Subject to my foregoing statements, I concur with the result reached by President M. Naor that the petition should be dismissed. Let me conclude by saying "ageing is what we all hope for and all fear. Let there be more hope and less fear".

 

 

 

Decided as stated in the opinion of President M. Naor.

 

Given this 13th day of Nissan 5776 (April 21, 2016).

 

 

The President	The Deputy President		Justice
Justice	Justice	Justice	Justice

 

            

 

 

 

Justice N. Hendel

1.    I concur with the comprehensive and well-presented opinion of my colleague E. Hayut. I believe this case may be significant for future cases and I have therefore decided to emphasize certain aspects of it.

Leah Zozal was forced to retire at 57 years and two months, without any substantive justification considering the nature of her job. My colleague held that the retirement arrangement discriminated against Zozal on the basis of her age. Among the grounds for a discrimination claim that are listed in s. 2(a) of the Equal Employment Opportunities Law, 5748-1988 (see Recanat, per Justice Cheshin, at p. 308), age discrimination is apparently something of a step-child, in two respects. First, even though it is the “oldest” of the grounds – since in actuality the cases deal with discrimination against an older worker and not the other way around – the issue of age is also among the youngest, in the sense that as an issue it does not have much seniority within Israeli Law. (See s. 2(a) of the Equal Employment Opportunities Law (Amendment 3) 5755-1995). Second, the junction between the prohibition of discrimination on the basis of age on the spectrum of causes for discrimination, and the phenomenon of workplace layoffs on the spectrum of those subject to discrimination, reveals an inherent irony in Israeli Law. On the one hand, age-based discrimination with respect to dismissals is prohibited. At the same time, the law imposes mandatory retirement at a particular age.

2. Other legal systems have dealt with this ironic conflict in various ways. In the United States, for example, the law has come to eliminate mandatory retirement ages. (Congress has banished age-based mandatory retirement in 1986 through an amendment of the Age Discrimination in Employment Act of 1967, 29 U.S.C. 621-634, except in unusual cases that are defined in the statute, such as the retirement of airline pilots. See also: Kenneth R. Davis, Age Discrimination and Disparate Impact: A New Look at an Age-Old Problem, 70 Brook. L. Rev. 361 (2004-2005).

In England, the Employment Equality (Age) Regulations (2I 2006/1031) (2006) were enacted in 2006. According to Regulation 30, an employer had the freedom to establish a mandatory retirement age of 65. This provision was repealed in 2011 with the enactment of the Employment Equality (Repeal of Retirement Age Provisions) Regulations 2011 (SI 2011/1069). In a judgment handed down in 2012, the Supreme Court held that an employer could create a mandatory retirement age but would have to prove that it had used “proportionate means to achieve a legitimate aim” (Seldon v. Clarkson Wright and Jakes (A Partnership) [2012] UKSC 16). The Supreme Court clarified that the aim of any differential treatment based on age must be to promote a social policy in which there is a public interest, and that in determining whether or not a public interest was involved, the Court should take note of the following considerations: promoting the access of young people to employment; efficient planning of the recruitment of workers which will insure the integration of various generations within the workforce, in order to encourage the transmission of experience and the exchange of new ideas; the softening of the blow to older workers when it is hard for them to find a new job if they are dismissed; compensation for experience; and helping older workers take part in the labor force. It should be noted that two of the key purposes are inter-generational justice and dignity.

Twenty years ago, a Canadian court examined the constitutionality of provincial laws that established a mandatory retirement age, in view of the Canadian limitations clause in s. 1 of the Canadian Bill of Rights and Liberties, and s. 15(1) of the Bill, which deals with age-based discrimination. However, in recent years, the trend in Canadian law – both provincial and federal – has been to eliminate the concept of mandatory retirement at a particular age, except in cases that are enshrined in specific pension agreements or in which retirement is necessary because of job requirements (see, Professor Ruth Ben-Israel, “Retirement Age and Equality: Biological or Functional Retirement?”, 43(3) Hapraklit 251 (5755-1995), at p. 285; New Brunswick (Human Rights Commission) v. Potash Corporation of Saskatchewan Inc. [2008] 2 S.C.R. 604). In contrast, in France and in Japan, there is a mandatory retirement age; ten years ago, that age was 60, but it has been rising since then (Andrew Wood, Marisa Robertson & Dominika Wintersgill, “A Comparative Review of international Approaches to Mandatory Retirement”, 674 Department for Work and Pensions Research Report (2010)). We thus have several different legal systems with uneven regimes and developments.

It is interesting to look at an illuminating example from Jewish law, which is relevant to our case. The Torah states the following: “[b]ut at the age of fifty they shall retire from the work force and shall serve no more. They may assist their brother Levites at the Tent of Meeting” (Numbers, Chapter 8, 25-26). Is this an example of a mandatory retirement age? Does a Levite who has reached the age of 50 stop working, or does he continue to work with his fellow Levites in the Tabernacle? The Sifrei commentary takes careful note of the text and writes as follows: “‘But at the age of fifty they shall retire from the work force’; does this mean that he does not work at all? The explanation is: ‘and [they] shall serve no more. They may assist their brother Levites at the Tent of Meeting.’ This shows that he returns to the task of locking the doors and to the work performed by the sons of Gershom” (one of Levi’s sons). According to this approach, the Levite stops doing one particular kind of work at age 50, but is given another job which is also part of the work of the Levite tribes – for example, locking the doors. The Zohar explains that the job of the Levites is to sing, but at age fifty, a man’s voice “has weakened and is not as pleasant to hear as his friends’ voices are” (free translation [from the Aramaic]; Zohar Vol. 1 (Genesis, Parshat Vayechi). According to another Midrashic commentary, Sifrei Zuta (Chapter 8), the Levite’s work also included heavy lifting – which is inappropriate for a Levite over fifty, because of his age. We see that the approach here is that there is room to dismiss a worker due to his age because of a relevant change that relates to the nature of the job – voice or heavy lifting. In contrast, there is no justification for an age-based dismissal if the worker (the Levite) can continue his work, based on his skills and abilities – in the Tabernacle. As explained below, given the nature of the petitioner’s job – an attorney’s position – there is no justification for an age-based dismissal.

On a general level, it may be recalled that a finding of age-based discrimination, like any discrimination, rests on its own unique characteristics. For example, the issue of age, as opposed to other issues of discrimination, is a developmental matter, which may be relevant to each of us when the time comes, hopefully if not in practice. However, the establishment of an age at which a worker retires, after many years of investment in his labor, is designated to benefit the worker and give him social security, so that he is not forced to work for his entire life (see: Todd D. Nelson, Ageism: Stereotyping and Prejudice Against Older Persons, x, 174 (2004)).

3.    As to our approach here in Israel, the law recognizes the establishment of a mandatory retirement age for workers (Retirement Age Law, 5764-2004). The relevance of the characteristics of age as cause for discrimination noted above is expressed in the sensitivity required for examining an age-based discrimination claim. The statutes and the case law have referred to this issue in four ways, all of which become more significant in this case in light of the opinion of my colleague, Vice President (emeritus) E. Rivlin. First, even when a mandatory retirement age has been established, it must be ascertained that the determination does not discriminate against a particular worker compared to others, based on his age. The prohibition against age-based discrimination, in s. 2(a) of the Equal Employment Opportunities Law, is a normative provision which is aimed at directing behavior. The law does not prohibit any kind of differential treatment. Rather, it only prohibits differential treatment that is based on an identifying characteristic which the employer is barred from considering. The meaning of the concept of discrimination that is “based on” a particular issue was discussed in a recent decision by President (emeritus) D. Beinisch (HCJ 1758/11 Orit Green v. Home Center (2012) (unreported)). In that decision, President Beinisch held that even in the absence of an intention to discriminate against the worker, the employer will have engaged in age-based discrimination if one of the factors that the employer considered when making a decision is one of the prohibited factors listed in s. 2(a) (ibid., at para. 16). In this case, it is clear that the workers’ age was considered by the IPS Commissioner in establishing his mandatory retirement procedures. When it comes to age-based discrimination, we cannot include a condition that the discrimination must be in favor of a younger worker and against an older worker; it is sufficient that a worker, of any age, is discriminated against in relation to identical employees, because of his age (see also Recanat, per Justice Zamir, at p. 346).

Second, the presence or absence of discrimination, in the sense that it means different treatment for parties who are equals, requires an answer to the question: “different from whom?” The definition of the peer group – which is the basis for the comparison made by the worker who claims he has been the subject of a discriminatory measure – is an important stage in the analysis of whether or not discrimination has been practiced. According to my colleague Justice E. Rivlin, the relevant peer group consists of all IPS workers, and the different treatment given to older IPS workers as compared to younger IPS workers constitutes unlawful discrimination. This dispute already arose in Rosenbaum, and this Court decided there that the “the relevant equality group in our case is civil servants as a whole” (Rosenbaum, at p. 872). In this sense, that holding is correct with regard to the instant case as well. In establishing the prohibition against age-based discrimination, the legislature directed the employer and the courts – with respect to their exercise of judicial review –to examine the workers’ conditions based on the various causes for discrimination, such as age and gender. In other words, the employer does not satisfy its legal obligation merely by distinguishing between different groups of workers. In examining the peer group, the prohibition against discrimination established in the statute forces us to look beyond the prohibited types of discrimination. The examination is a legal-normative one, not just organizational. The relevant “groups” for comparison are defined according to the types of discrimination claims listed in the statute. This point is demonstrated in particular when the employer of the two employee groups discussed by my colleague – IPS workers and the civil servants – is, in fact, a single employer: the State of Israel. The relevant peer group is determined based on the nature of the work and not necessarily based on the workers’ institutional affiliation. My approach, as has already been well stated in the opinion of my colleague Justice E. Hayut, is that the petitioner in this case should be compared to other workers holding professional, administrative and staff positions in the civil service, rather than to the IPS wardens.

Third, we need to look at whether the differential treatment is indeed discriminatory or whether there is in fact a relevant and justified difference between the groups, as indicated in s. 2(c) of the Equal Employment Opportunities Law: “Differential treatment necessitated by the character or nature of the job or position shall not be regarded as discrimination.” At this stage, what is examined is the differences between the nature of the work of administrative employees in the IPS, on the one hand, and the nature of the work done by the same type of employee in the civil service, on the other. The question to be answered is whether those differences justify differential treatment with regard to the matter of forced retirement (and see the implementation of the section regarding the requirement made of El Al flight attendants for proper appearance in HCJFH 4191/97 Recanat II, at p. 354). Here, I did not find any relevant difference derived from the nature of the petitioner’s job which can remove the stain of discrimination.

Fourth, the standard for determining whether there has been discrimination is not just the age of retirement but also the “procedures” established for retirement. The mechanism used for reaching retirement decisions is material to the issue of discrimination. I therefore agree with the holding in the opinion of my colleague Justice E. Hayut – that there is an independent defect in the arrangement which is the subject of this deliberation. This defect is that the starting assumption for an IPS worker is mandatory retirement at the age of 57, regardless of the type of job held by the worker, unless he applies for an extension of his employment, which must be granted by the IPS Commissioner. Such an extension is also limited to a maximum period of three years. This is in contrast to the retirement arrangement for civil servants, for whom the starting assumption is that they will be employed until the general retirement age of 67, unless the Civil Service Commissioner orders that the worker retires upon reaching the age of 60 (s. 18 of the Retirement Law [Integrated Version] 5730-1970). That is, even in comparison to the group of IPS workers only – according to my colleague – I do not understand why workers who have reached the age of 57, specifically, must ask for an extension of their employment, when this arrangement is not necessitated by the nature of the job or position. The statute grants discretion for the IPS Commissioner to exercise, including by deciding not to extend an IPS worker’s employment. An additional distinction that has been noted is that an IPS worker’s employment can be extended only until he turns 60. This makes the petitioner’s situation different from that of a civil servant of the same age, who also holds an administrative position.

The different retirement arrangements reflect the difference between the opt-in approach and the opt-out approach, which are used in – inter alia – marketing, privacy matters, and class action lawsuits. The difference between the two methods centers on the question of whether an individual needs to act passively or actively in order to establish his belonging to the group or to preserve his rights. The IPS retirement arrangement places an unjustified burden on the worker, requiring him to proactively apply for employment extension each year from the time he turns 57, as opposed to civil servants whose employment is extended without any need for action on their part, unless it is the Civil Service Commissioner who takes action to initiate retirement proceedings. The arrangement tips the scales – excessively – against IPS workers as opposed to civil servants holding equivalent positions, even though the employer retains the right to decide to extend the worker’s employment for a limited period (compare Leiba v. Police Commissioner, at para. 8). The IPS retirement arrangement delivers a particular message and embodies a particular tone and significance. These point to its discriminatory nature – i.e., to the fact that it treats workers differently, without justification, on the basis of their age.

In this case, a comparison between the retirement arrangement in place for the petitioner and for other workers in the IPS, on the one hand, and the retirement arrangement for the relevant peer group among other civil servants, on the other, is sufficient to show that there has been discrimination against the petitioner. To this, we must add the retirement age established for the petitioner – 57 – as compared to the standard retirement age in the economy. The said age, given the nature of the petitioner’s job, appears to be arbitrary, or to have been chosen – together with the mechanism used for extending workers’ employment – only to satisfy the legal requirements outlined in Rosenbaum. This is not to presume that the IPS acted in bad faith in establishing its retirement arrangement. The presence or absence of discrimination is not measured by the subjective intention of the employer, but rather by the objective outcome for the worker (compare the Canadian court’s decision in New Brunswick, supra). A worker should not have to feel that he is being granted a favor, where the law is actually on his side.

 

Justice Y. Danziger

I agree with the judgment of my colleague Justice E. Hayut.

As my colleague noted in para. 20 of her opinion, the retirement arrangement under discussion here is substantially different from the arrangement that was struck down in Rosenbaum. Unlike the arrangement at issue in Rosenbaum, the arrangement invalidated in the present case includes practical standards and tests for an individual examination to be performed with respect to each warden when he or she reaches age 57. This is a significant step in the right direction. At the same time, I accept in full my colleague’s position that this is not enough, and that there is still a substantial and unreasonable disparity between the retirement arrangement for IPS personnel and the arrangement for all civil servants. There are three factors that have led me to this conclusion. First, I have considerable difficulty with the arrangement’s starting assumption – i.e., that a worker automatically falls within the “worker of a retirement age” category when he turns 57 (ten years earlier than the retirement age for the civil service), and that from that time onward the worker bears the burden of proving that he is qualified to continue working. This is in contrast to the arrangement that applies to other civil servants, where the starting assumption is the reverse. I do not believe that this is a symbolic or minimal difference. Second, the mechanism through which the employment is extended, as set out in the arrangement (and which allows for a limited extension for a period of only one year at a time, for a maximum period of three years, or until the worker reaches the age of 60) is unreasonable (see para. 21 of my colleague’s opinion, and paras. 37-38 of my colleague Justice S. Joubran’s opinion). Third, the arrangement does not distinguish between IPS workers who hold operational positions and those who hold professional-administrative positions. The strength of the respondent’s arguments – that IPS workers generally experience work-related burnout more quickly – is thus greatly weakened.

Consequently, I believe that the arrangement as a whole cannot remain in place and that it must be invalidated in its entirety.

My colleague Justice S. Joubran provided an in-depth analysis of the various mechanisms and tests included in the arrangement, and concluded that it should not be completely invalidated; that instead, only a few provisions need to be struck down – provisions which he believes are insufficiently proportionate (see paras. 29-39 of his opinion). My colleague also believes that the arrangement’s starting assumption (that the worker automatically becomes “a worker of retirement age” at the age of 57) is symbolic and of minimal importance.

I reviewed my colleague’s opinion carefully, but at the end of the day, I remain of the opinion that it would not be right to merely “correct” the arrangement, and that it is impossible to distinguish between its provisions so as to invalidate only some of them.

As stated, I believe that an examination of the arrangement in its entirety leads to the conclusion that it is unreasonable and cannot be divided into its various parts, as my colleague Justice E. Hayut has shown.

 

 

Decided as per the opinion of Justice E. Hayut.

 

Given this day, 9 Elul 5772 (27 August, 2012).

 

 

 

 

 

 

 

 

 

Petitions granted.

21 Kislev 5767.

12 December 2006.

 

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

v.

 

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)

 

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.

 

            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 http://www.cbs.gov.il/reader/newhodaot/hodaa_template.html?hodaa=201115219.

            Furthermore, it is important to note that lower wages is only one method of discrimination against women in the labor market. Others include not hiring women, sexual harassment, the inadequate representation of women in senior positions and the mistreatment of pregnant women and mothers.  Throughout the years, the Knesset has attempted to deal with these various expressions of gender discrimination whether through the two laws at issue in this case or by other pieces of legislation (see, e.g., The 1951 Equal Rights for Women Act, the 1954 Women in the Workplace Act, and the 1998 Law Against Sexual Harassment in the Workplace).  This Court has also acted to protect the rights of women and to prevent discrimination against them (see, e.g., HCJ 153/87 Shakdiel v. The Minister of Religious Affairs [1988] IsrSc 42(2) 221; In Re The Women’s Lobby; HCJ 2671/98 The Women’s Lobby in Israel v. The Minister of Labor and Welfare [1988] IsrSc 52(3) 630).  Regarding the laws in place to advance equality between men and women we quote the words of then-Justice M. Cheshin in HCJ 2671/98 at 657 - 58:

We reviewed statutes and established rules based on our interpretation of the law.  The common denominator of these rules was and is the pressing social need to recognize the equal status of women and to strengthen this notion of equality.  These laws are progressive and the rules are no different.  When seen from afar, these laws and rules may seem strange and indirect, but I assume that a day will come when these laws will seem like child’s play, laws which are praised by the great ones of today.  Here we have a woman's right to "equal pay for the same job" as per Section 2 of the Equal Pay Act, does this law not state the obvious?  Does it matter whether 500 boxes are packed by a man or a woman?  Was this legislation not obvious and self evident even before its enactment?  Had this law not been passed would we have not established it as a rule stemming from the (constitutional) principle of equality? The same can be said about the Equal Job Opportunities Act.  There is no law which states that which we already know, namely that it is wrong to discriminate against women for no reason other than her gender.  This can be said for these two laws and any other law enacted with the same purpose.  These statutes have been enacted solely to explain illegal discrimination which has taken root in society, and the instructions therein are only to spell out to the masses what norms should prevail.  The legislator explicitly warns us of the need to eliminate illegal acts that have taken hold and place women in the place they should have been in to begin with.  The legislator has not declared new norms that are not self evident, rather, it has taken its time to spell out what exactly our legal and societal norms should be.  After having done that, the legislator correctly sanctions anyone who violates the law.  These laws are like rays of light, and the light in this case is equality, or, more specifically, gender equality in all matters.  If we go from one ray of light to another, the doctrine of equality will reveal itself in all its glory.   

            Unfortunately, even today, the second decade of the 21st century, we still need legislation to protect women from gender discrimination.  I would have hoped that today we would be in the era in which these laws would be, as Justice Cheshin described, “child’s play;” however, this era is still far, perhaps even very far, away from us.

15.       The Equal Job Opportunities Act is broader than the Equal Pay Act and was enacted to deal not only with gender discrimination, but with other forms of discrimination as well (such as age, sexual orientation, race and religion).  Likewise, the purpose of the Equal Job Opportunities Act is to prevent discrimination not only in pay, but in other aspects of the workplace as well (like hiring, work conditions and promotions). These two statutes have different definitions for what constitutes illegal discrimination.  The Equal Pay Act looks to the end result by requiring only a showing of difference in pay between a male employee and a female employee in order to have a successful claim.  Under Sections 2 and 6 of the Equal Pay Act, the labor court adjudicating such a claim must see if there is a difference in salary between the female plaintiff and a male employee to whom she is comparing her salary and who performs the same, or substantially the same, task or a one of equal value.  Once this is successfully established, the burden of proof shifts over to the employer to prove that the difference in salary is justified under Section 6(a) of the Equal Pay Act.  As President Adler pointed out in his decision, the list provided in Section 6(a) is not exhaustive.  However, any considerations not listed in Section 6(a) of the Equal Pay Act must be of the same kind as those listed and must be ones that demonstrate a difference in the “nature or the character” of the job in question.  If the employer cannot meet his burden of proof, the court must conclude that the plaintiff has a valid claim under the Equal Pay Act. 

I must note that I cannot accept the opinion of Judge Wirth-Livnah - who on this point was a lone opinion – arguing that the employer’s freedom to contract is a consideration which may, under certain circumstances, justify a difference in salary between a male employee and a female employee, even when it is not in the framework of one of the considerations listed in Section 6(a).  Through the considerations outlined in Section 6(a), the legislature determined what the balance should be between the freedom to contract and the protection of equality by listing relevant considerations which can justify a difference in salary between a male and female employee performing the same task.  Due to the importance of the principle of equality in our legal system and the need to prevent unjust gender discrimination, I believe that the freedom to contract cannot, on its own, be a legitimate consideration justifying a difference in wage between a male and female employee.  Recognizing the freedom to contract by itself as a legitimate defense to a claim of gender discrimination may lead to its utilization as a fig leaf to cover up real discrimination, completely undermining the purpose of the Equal Pay Act.  Allowing this as a defense ignores the fact that there are actual gaps between the genders in the labor market with regards to salary demands and salary negotiation.  See Sharon Rabin-Margaliot, The Market Explanation to Wage Differences: In Light of the Home Center (Do It Yourself) Ltd. v. Orit Goren, 50 HaPraklit 501, 512 – 20 (5770) (henceforth, “Market Explanations”). 

In order to deal with the difficulty women have in the labor market, the legislature decided to limit the employer’s freedom to contract in order to advance the principle of equality.  In the absence of any other considerations affecting the worker in question (as outlined in Section 6 of the Equal Pay Act), the employer may not differently compensate a male and female employee who are performing the same task.  Therefore, the legislature made a value judgment to limit the contractual freedom of an employer in order to reduce gender discrimination in the labor market.  To further this goal, taking into account the imbalance of power inherent between employees (especially females) and employers, the legislature lightened the burden imposed on the employee-plaintiff by shifting the burden of proof onto the employer under Section 6 of the Equal Pay Act.  Accepting the idea that the freedom to contract may justify a wage gap is contrary to the fundamental purpose of the Equal Pay Act, which is reducing the impact of gender discrimination on market forces in determining the salaries of women. 

Additionally, I reject the argument of Judge Wirth-Livnah according to which allowing the right to equal pay to supersede the freedom to contract will cause employers to avoid hiring women.  By instituting such a policy, an employer will violate the Equal Job Opportunities Act, which prohibits an employer from considering gender in making personnel decisions.  Such an employer would be liable to both civil and criminal penalties.  Therefore, the method by which we can prevent gender discrimination in the labor market is by enforcing the laws in place to that effect and not by avoiding these laws by taking into account market conditions. 

16.       Unlike the Equal Pay Act, a claim under the Equal Job Opportunities Act requires the plaintiff to establish causation.  Illegal discrimination under the Equal Job Opportunities Act is discrimination committed “because of” the plaintiff’s identity as a member of a protected class.  In order to prove a claim of discrimination under the Equal Job Opportunities Act, a plaintiff must prove that the employer acted discriminatorily when making one of the employment decisions listed in Section 2(a) of the Equal Job Opportunities Act.  We must point out that the Equal Job Opportunities Act does not require the plaintiff to prove the defendant acted intentionally to be successful in her claim. 

Regarding a policy requiring different retirement ages for men and women, Justice G. Bach stated:

I am prepared to assume that Petitioner's employer did not intend to discriminate against [the petitioner] and the other female employees when it signed the Labor Constitution. However, the Respondent's intentions are not conclusive as to the question that we are called upon to determine, because the test for assessing the existence or nonexistence of discrimination is objective and not subjective. The motive for creating a distinction between men and women is not determinative in the matter addressed, and for the purposes of determining the existence of discrimination, it is necessary to examine the final outcome as it appears in social reality.

 

HCJ 104/87 Nevo v. National Labor Court, IsrSc [1990] 44(4) 749, 759.

 

            Therefore, an employer taking into account one of the considerations listed in Section 2(a) of the Equal Job Opportunities Act when making an employment decision can trigger liability.  Even without any intent to discriminate, taking into account an employee’s gender, age, religion or any of the other protected classes listed in Section 2(a) of the Equal Job Opportunities Act is prohibited, unless the nature or character position in question reasonably requires such discernment as provided by Section 2(a) of the law.  Furthermore, in light of the difficulty in proving that the employer took into account the employee’s membership in a protected class in making a personnel decision, Section 9 of the Equal Job Opportunities Act allows the employee to merely prove that he or she meets the qualifications of the position in question in order to shift the burden of proof onto the employer to rebut the claim of discrimination and prove that his decision was not based on any illegal consideration.  See HCJ Rehearing 4191/97 Recanat v. National Labor Court [2000] IsrSc 54(5) 330, 351 – 52; Sharon Rabin-Margaliot, The Elusive Case of Employment Discrimination – How to Prove its Existence, 44 HaPraklit 529, 539 – 43 (5758 - 5760).

            In short, in a claim filed under the Equal Pay Act, one needs to establish that there is a difference in salary between herself and a male employee performing the same (or substantially the same) task (or a task of equal value), and if the employer cannot prove that the difference in salary is justified, the plaintiff will be successful.  However, to file a claim under the Equal Job Opportunities Act, the plaintiff must prove that the employer took into consideration the plaintiff’s membership in a protected class when making the employment decision in question.  In other words, the Equal Pay Act creates a legal presumption of discrimination if the plaintiff can prove that there is a difference in salary between her and a male employee and the employer cannot legally justify the difference.  Such a legal presumption does not exist under the Equal Job Opportunities Act, and therefore, the burden upon a plaintiff in such a claim is much heavier.  However, the Equal Job Opportunities Act does not require proof that the employer intended to discriminate, only proof that there is causation between the employer’s consideration of the plaintiff’s membership in a protected class under Section 2(a) and the employment decision in question. 

17.       Another important distinction between the Equal Pay Act and the Equal Job Opportunities Act is the remedy prescribed by the legislature for the violation of the laws.  Under the Equal Pay Act, punitive damages may not be awarded, and Section 8(a) of the law limits the time in which an affected employee can file a claim for back pay to 24 months.  By contrast, under Section 2 of the Equal Job Opportunities Act, a labor court may, pursuant to Section 10(a)(1) of the law, award damages as it sees fit given the circumstances, even in the absence of any proof of loss. These damages serve as a deterrence and are not available under the Equal Pay Act.  Under Section 10(a)(2) of the Equal Job Opportunities Act, a labor court may even, under certain circumstances, issue an injunction or a direct order if it determines that a monetary award is not sufficient.  Additionally, under Section 15(a) of the Equal Job Opportunities Act, a person in violation of the statute may be fined up to double the fine established by Section 61(a)(3) of the 1977 Penal Code.    

18.       The purpose of the Equal Pay Act is to deal with one of the more common expressions of gender discrimination in the workplace; therefore, the plaintiff has a considerably lighter burden of proof.  However, the law limits the damages that can be awarded in such a case.  The purpose of the Equal Job Opportunities Act is to deal with different types of discrimination that affects different classes of people and requires proof of causation between the illegal consideration taken into account and the employment decision in question.  Additionally, the Equal Job Opportunities Act permits an award of damages even without any proof of economic damages on the part of the plaintiff and allows for punitive measures to be taken against the discriminating employer.

19.       In this case, the Petitioner’s claim under the Equal Pay Act is not in question considering the salary difference between her and Mr. Mor who performed the same task as the Petitioner.  The issue we must decide is whether this claim is enough for the Petitioner to also have a claim under the Equal Job Opportunities Act.  The majority opinion in the National Labor Court decided this question in the negative, when determining that it is not one of the circumstances in which a plaintiff can shift the burden of proof over to the employer in accordance with Section 9 of the Equal Job Opportunities Act.  The National Labor Court determined that in order to shift the burden, the plaintiff must bring evidence that the employer discriminated against or treated his employees unequally.  Furthermore, Judge Wirth-Livnah determined that the employee must provide evidence adequately demonstrating discrimination on the part of the employer.  The mere fact that the plaintiff has a successful claim under the Equal Pay Act does not fulfill this requirement. 

By contrast, the dissenting opinion of President Adler held that a successful claim under the Equal Pay Act suffices to create a prima facie case of discrimination under the Equal Job Opportunities Act.  Because the employer could not successfully rebut the claim of the employee under Section 6(a) of the Equal Pay Act, it stands to reason that the cause for the pay difference is the employee’s gender.  We will now determine whether this is so. 

20.       In light of the differences between the two laws, a successful claim under the Equal Pay Act will not automatically trigger a claim under the Equal Job Opportunities Act.  Each statute is meant to safeguard against different forms of discrimination in the workplace; each have different ways of testing whether discrimination has occurred; and each provide for different penalties for their respective offenders.  It seems, therefore, that allowing for the laws to overlap would be inconsistent with the respective purposes of the statutes and the problems they are designed to address.  The Equal Pay Act deals with one common example of gender discrimination in the workplace and the cause of action created by the law fits this type of discrimination.  This cause of action is not the same as that of the Equal Job Opportunities Act, which sets a higher bar for establishing a successful claim against an employer and relates to various types of employment decisions.  However, the Equal Job Opportunities Act recognizes, so to speak, the difficulty an affected employee may have in demonstrating the considerations taken into account by the employer, and allows, under certain circumstances, for the burden of proof to be shifted over to the employer to prove that he did not act out of wrongful discrimination.  The question is, what is the evidentiary minimum necessary to shift the burden of proof over to the employer under the Equal Job Opportunities Act, and whether a successful claim under the Equal Pay Act fulfills this requirement. 

21.       Section 9 of the Equal Job Opportunities Act deals with the circumstances by which a plaintiff may shift the burden of proof over to the defendant.  Under Section 9(a), the burden may be shifted if the plaintiff can prove that he fulfills the conditions and requirements set by the employer to be considered for the employment decision in question.  The burden placed upon the plaintiff is relatively light.  A close reading of Sections 2 and 9 of the Equal Job Opportunities Act leads to the conclusion that a plaintiff claiming discrimination on the basis of his membership in one of the protected classes listed in Section 2 must prove that he fulfills the conditions and requirements set forth by the employer for the employment decision in question in order to shift the burden onto the employer to prove that his decision was not influenced by any wrongful considerations.

22.       The circumstances established by Section 9 of the Equal Job Opportunities Act are only one example of where the burden of proof may be shifted, and I accept the argument made by the Equal Opportunities Commission that there may be other circumstances in which the burden of proof may be shifted as well.  Because the question of whether or not the employer discriminated against the plaintiff is not necessarily related to whether or not the employee was fit for the position in question, Section 9 of the Equal Job Opportunities Act is not a complete list of methods by which a plaintiff can shift the burden of proof.  Therefore, in light of the difficulty in proving the considerations of the employer in making his decision, it stands to reason that the burden should be shifted in a case where the employee can prove that the employer had discriminated against him in the past.  Furthermore, because of the power imbalance inherent in an employer/employee relationship, the burden upon the plaintiff should not be particularly high.  Hence, the establishment of a prima facie case of discrimination will depend on the independent circumstances of each case.

            Therefore, I do not believe that the opinion of the National Labor Court requiring the plaintiff to prove discrimination on the part of the employer, as is the opinion of the National Labor Court, is correct.  As will be explained below, it is 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. 

Additionally, the plaintiff can also shift the burden by demonstrating a policy of discrimination on the part of the employer based on the criteria outlined by Section 2 of the Equal Job Opportunities Act.  The evidence provided may have the same effect if it can prove that the result of any decision or policy undertaken by the employer has a discriminatory effect, even if it is not based on one of the prohibited considerations.  The evidence the plaintiff must provide in order to meet the requirements of this evidentiary test must relate to the relationship between the employer and the plaintiff employee in comparison to the employer’s relationship with the other employees who are not members of the same protected class as the plaintiff.  The evidence should also compare the employer’s behavior towards employees who are members of the plaintiff’s protected class to his treatment of employees who are not members of the class in question.  Once the plaintiff has successfully demonstrated disparate treatment, the burden of proof will shift onto the employer to prove either that the disparity in treatment stems from the nature of the position under Section 2(c) of the Equal Job Opportunities Act, or that it stems from a reason unrelated to any of the illegal considerations listed in Section 2(a) of the Equal Job Opportunities Act.  It is important to note that the Equal Job Opportunities Act explicitly lists the considerations which an employee may not take into account when making certain employment decisions.  If he can prove that the discriminatory result was not based on any wrongful considerations, he will successfully establish that he did not discriminate “because of” any wrongful considerations.  As President Barak stated regarding age discrimination in the Recanat Further Hearing:

As a general rule, the burden of proof is imposed upon the employee-plaintiff claiming discrimination.  This burden is met when the plaintiff proves that the employer mandates retirement when employees reach a certain age (this is direct discrimination).  The burden may also be met by establishing that a regular practice of the employer results in age discrimination (this is indirect discrimination).  In the first case, it is enough to prove that company policy dictates different retirement ages for different workers.  Proving the existence of such a rule, irrespective of the position of the employee, will prove the existence of discrimination “because of” age.  In the second case, the official policy is indiscriminate and does not mandate different retirement ages for different employees.  However, the requirements of the job set by the employer effectively results in different retirement ages for different employees.  By establishing this practice, the employee meets his burden of proof demonstrating the existence of discrimination “because of” age.  Needless to say, such a case is only indirect, but enough proof to show that the employer discriminates “because of” age (Section 2(a)).  At this point, a court must determine whether the difference in retirement ages is a result of the nature of the position in question (Section 2(c)).  The burden of proof will shift to the defendant (usually the employer, see Section 9(a) of the Equal Job Opportunities Act) to prove this is the case.  Note that with regards to the substantive law, whether discrimination exists is linked to the nature of the job in question.  In terms of the procedural law, a distinction is made regarding the burden of proof. 

 

FH 4191/97 Recanat, IsrSc 54(5) at 351 - 52.

23.       Regarding the issue at hand, I have come to the conclusion that a successful claim under the Equal Pay Act suffices to fulfill the evidentiary threshold necessary to shift the burden of proof over to the employer in a claim filed under the Equal Job Opportunities Act.  Once the plaintiff has proven that a male coworker receives a higher salary while performing the same, or substantially the same, task or one of equal value in the same workplace, and the employer cannot justify the difference in salary based on the nature of the task performed (under Section 6 of the Equal Pay Act), the plaintiff will have established a prima facie case of gender discrimination.  Note that there is no dispute with regards to the understanding that Section 2(a) of the Equal Job Opportunities Act forbids an employer from taking into account the gender of an employee when determining her salary.  When an employee successfully establishes a claim under the Equal Pay Act, the implication is that she was discriminated against by her employer on the basis of her gender, which is demonstrated by the wage gap between her and a male employee, which could not be adequately justified by the employer under Section 6(a) of the Equal Pay Act.  These circumstances will shift the burden of proof onto the employer to prove that the wage gap is a result of the nature of the position in question under Section 2(c) of the Equal Job Opportunities Act or that the reason for the difference in salary is unrelated to any of the considerations prohibited by the Equal Job Opportunities Act.  In other words, the employer must prove that there is no causal relationship between the wage gap and the gender of the employee, and thus, the difference in salary is not “because of” the plaintiff’s gender.  If the employer can successfully prove that the plaintiff’s gender was not taken into account when determining her salary, the plaintiff will not have a successful claim under the Equal Job Opportunities Act.  By contrast, if the employer cannot meet his burden of proof, the court will have no choice but to determine that the employee-plaintiff has a valid claim under both the Equal Pay Act and the Equal Job Opportunities Act. 

24.       In the case before us, it is undisputed that the Petitioner has a successful claim under the Equal Pay Act.  Given the circumstances, the burden of proof now shifts over to the Respondent to prove that there is no causal connection between the gender of the Petitioner and the 35% difference in salary between her and Mor, meaning that her gender was not taken into consideration when determining her salary.  The factual background outlined by the district labor court indicates that the Respondent successfully proved that there is no general company policy regarding pay which results in discrimination against women; however, it did not provide the salaries of the other workers working in the tool department of the Ramat Gan branch, which is where the Petitioner worked.  This information is important in light of the fact that at the time, individual salaries were not determined by the Respondent’s corporate administration, but rather by the managers of each individual branch.  Therefore, the only claim of the Respondent is that the reason for the Petitioner’s lower salary is because of the fact that she asked for a lower wage when negotiating her salary (the Petitioner asked for NIS 3,500/month, while Mor requested NIS 6,000/month; the Petitioner was given a salary of NIS 17/hr – which equals NIS 3,264/month – and Mor received a salary of NIS 5,000/month).

            An employer proving that the salaries of his workers is a result of negotiations between the parties and that he treats both male and female employees the same with regards to their salary will meet his burden of proof under the Equal Job Opportunities Act, so long as he can demonstrate a company policy regarding wages that is uninfluenced by gender or any of the other classes protected by Section 2(a).  When wages are negotiated by the parties, we cannot necessarily say that the employee’s gender was taken into consideration or that the employee was discriminated against “because of” her gender, though whether the inherent inferiority of the employee was taken into consideration by the employer is a factor, among others, that must be taken into account by the court.  Moreover, it is important to note that in this case there may be a difference between a claim filed under the Equal Pay Act which merely tests whether there is a difference in salary between male and female employees, and whose purpose is to deal with, among other things, the weaker bargaining power of women in the job market and a claim filed under the Equal Job Opportunities Act, which tests the legality of the considerations taken into account by the employer when making employment decisions (including salary decisions).  Compare The 1954 Women in the Workplace Act, and The Equal Job Opportunities Act; HCJ 554/05 Ashkenazi v. Police Superintendent [2005] IsrSc 60(2) 299, 306.  To quote the words of S. Rabin – Margalit:

The Equal Job Opportunities Act is based on causation.  A successful plaintiff will need to prove that the employer took a wrongful consideration – the fact she is a woman – into account when determining her salary.  The causation element must be proven, in other words, she must prove that the reason her salary is lower is because she is a woman.  As has been mentioned, the Equal Pay Act is not based on causation.  Therefore, there may be instances in which liability exists under the Equal Pay Act, but not the Equal Job Opportunities Act.  In those instances in which a difference in salary between male and female employees is established, but it cannot be proven that the employees’ gender was the cause, or one of the causes, influencing the difference in pay, there will be liability pursuant to the Equal Pay Act, but not necessarily under the Equal Job Opportunities Act.  This would explain why the Equal Pay Act was enacted in 1996, despite the fact that the Equal Job Opportunities Act, which also prohibits discrimination with regards to wages, had already been in effect for almost a decade (1988). 

Rabin-Margaliot, “Market Explanations” at 504 - 05. 

            Furthermore, 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 what to pay her, and that the only reason for her lower salary is because she asked for a lower one during salary negotiations.  In other words, employee differences in bargaining power may explain differences in salary; however, the more significant the difference, the more difficult it will be for the employer to prove that the difference is wholly based on the employees’ bargaining power and not even partially based on a consideration prohibited by Section 2(a) of the Equal Job Opportunities Act.  Additionally, because the Petitioner did not provide evidence to its effect in the district labor court, I should note that I am not answering the question of whether the practice of salary negotiation is one that (indirectly) discriminates against women. 

25.       In this case, due to the significant difference in salary between the Petitioner and Mor, the claim that the Petitioner asked for a much lower salary is not good enough of a claim on the part of the Respondent to meet his burden establishing that the Petitioner’s gender was not taken into account when deciding how much to pay her.  When there is a 35% difference in salary between a male and female employee performing the same task and the Respondent cannot provide a relevant consideration justifying the pay difference, the claim that there was a difference in their respective salary requests is not strong enough to absolve the employer under the Equal Job Opportunities Act.  Proving this claim without any other evidence on the part of the employer is not enough to rebut the presumption that the Petitioner’s gender was taken into account when deciding her salary. 

Additionally, as the district labor court held, the fact that the Respondent does not have a policy which results in discrimination is a consideration that can be taken into account when determining the amount of damages to be awarded under the Equal Job Opportunities Act.  However, this has no bearing on the proof of the claim itself, once we have determined that the plaintiff’s salary is to be measured against the employees working at her branch and not the general pool of employees working for the Respondent. 

26.       Therefore, we rule in favor of the Petitioner, and overturn the decision of the National Labor Court.  The Petitioner has a valid claim under the Equal Job Opportunities Act in light of the gender discrimination and the Respondent’s failure to meet his burden of proof.  Additionally, any obligation the Petitioner may have to return the compensation she received from the Respondent under the Equal Pay Act is void. However, I would not award any damages to the Petitioner under the Equal Job Opportunities Act, due to her delay in filing her petition and her attorney's request that the determination of damages that the Petitioner may be entitled to be  left to the discretion of this Court.  Also, I see no reason to take a position regarding the damages she was awarded by the district labor court.  This means that the Petitioner’s reliance on the decision of the National Labor Court means that the Respondent need not compensate her under the Equal Job Opportunities Act.  Thus, any obligation the Respondent may have towards the Petitioner under the Equal Job Opportunities Act is void. 

Finally, because of the delay in filing her petition, we will not award any costs or attorney’s fees to the Petitioner. 

The President (Ret.)

 

Justice I. Amit

I concur and would like to add the following:

1.         The decision of the National Labor Court is not appealable and can only be reviewed by this Court as a petition to the High Court of Justice, similar to a petition regarding the decision of a Rabbinical Court.  Since this case involves a petition and not an appeal, the Respondent cannot claim that the plaintiff’s delay in filing makes the decision of the National Labor Court absolute barring the High Court of Justice from hearing the case.  However, because filing a petition is the only remedy available, someone requesting that the decision of the National Labor Court be reviewed should do so soon after the decision is handed down.  The extensive case law behind the issue of dismissal for claims not immediately filed, some of which were quoted by President Beinisch in paragraph 10 of her opinion, deal with administrative decisions, while this case involves a judicial decision.  (As a side point, the distinction between different types of decisions is covered in Section 15(d) of the Basic Law: The Judiciary.  Section 15(d)(2) authorizes the High Court of Justice to issue orders to authorities and public officials, Section 15(d)(3) authorizes the Court to issue orders to other courts, tribunals and other bodies and individuals who act out of judicial or quasi-judicial authority.  Section 15(d)(4) authorizes the Court to issue orders to religious courts.)  As a general rule, I believe that this Court should show restraint when so much time has passed from the time of the original decision in another court.  This Court should exercise its power of review only in rare situations such as where it is discovered, after the fact, that the decision of the National Labor Court has broad ramifications unforeseen at the time of the decision, or where there is a strong public interest justifying a hearing despite the time lapse.  See HCJ 3514/07 Mivatchim Mossad LiBituach Sociali Shel Ovdim Ltd. v. Feurst [May 13, 2012] at Para. 28 (unpublished).  I should add that this case should not be viewed as precedentially groundbreaking.

2.         Regarding the main issue of this case, I agree with my colleague that a successful claim under the Equal Pay Act will not necessarily be successful under the Equal Job Opportunities Act.  This can also be inferred from the language of Section 6(a) of the Equal Pay Act:

Section 2 does not prohibit a difference in salary or other compensation stemming from the nature of the work involved, including quality of work, seniority, training or education, or geographical location of the workplace, so long as there is no discrimination on the basis of gender (emphasis added – I. A.).  

            It is not enough for the employer to provide a relevant justification for the difference in salary; we must examine the justification provided to ensure that the justification is not a cover for gender discrimination. Similarly, if the employer cannot justify the difference in pay, it does not necessarily mean that the difference is due to gender discrimination.  The issue of discrimination is to be examined within the framework of the Equal Job Opportunities Act and not the Equal Pay Act. 

            In short – the plain language of the laws themselves, the difference in how the claims are defined by the respective laws, the different purposes of the laws, the need for establishing causation under the Equal Job Opportunities Act, the different remedies provided, and the need for the Equal Pay Act to be enacted after the Equal Job Opportunities Act was already in effect, despite the fact that not compensating two employees equally can lead to claim of illegal discrimination in “work conditions” –  all point to the conclusion reached by my colleague. 

3.         As mentioned in Section 6(a), an employer can justify a pay difference based on the nature of the task being performed; however, pre-employment salary negotiations are not included in this exception.  See Rabin-Margaliot, “Market Explanations” at 503.<<this is the format for imbedded citations in English>>  Women ask for lower salaries for different reasons, some of which perpetuate the reality in the workplace and stereotyping for which the Equal Pay Act was put in place in order to fix.  Expanding the list of justifications listed in Section 6(a) by recognizing the negotiating patterns of the employer and his freedom to contract as additional justifications for pay differences between men and women is not evident in the plain language of the law and can lead to an incorrect interpretation of the law.  In other words, in Section 6(a) the legislature formulates a balance in the form of a limited list of justifications involving the nature of the job in question.  Expanding this list may cause a law meant to protect equally to widen the gap between men and women or lend legal legitimacy to discriminatory practices. Cf. Guy Mundlek, Are Anti-Discrimination Laws Doing Their Job? in Is The Law Important? A Series of Books in Memory of Haim Y. Zadok, 223, 228 (2010)). 

4.         This case illustrates the lack of overlap between the two laws and why a successful claim under the Equal Pay Act does not necessarily mean there is an automatic claim under the Equal Job Opportunities Act.  While the different wage demands of the Petitioner and Steven Mor do not constitute a justification under Section 6(a) of the Equal Pay Act, it does not fall into the realm of wrongful discrimination under Section 2(a) of the Equal Job Opportunities Act, because the pay difference does not stem from the gender of the two workers, but from the different wage demands.  I should also note that the Equal Job Opportunities Act requirement to prove causation makes it harder on the plaintiff, which is the advantage of the Equal Pay Act in this case.    

Justice Amit

 

Justice N. Hendel

I agree with the impressive ruling and overall reasoning of my colleague, President D. Beinisch.  I would like to strengthen the conclusion that the disparity in bargaining power among employees cannot justify the difference in pay, especially where the disparity is so significant. The radical feminist approach provides further support for our conclusion. This approach determines the status of women in the workplace based on their relative strength  in a gender biased society.  This approach does not focus solely on women who have made it to the top of the social ladder; it  emphasizes the difficulty of all women, especially those far down from the top of the social or economic pyramid –..  According to this approach, the number of female CEOs and Knesset members may blind us, although not deliberately, from the more subtle forms of gender discrimination.  As my colleague the President noted, due to the 35% difference in pay, the fact that the Petitioner was willing to work for a lower salary does not prove that she did not experience inequality.  However, this fact reflects the relative bargaining positions of the Petitioner and the employer, and mainly the Petitioner’s bargaining position vis a vis other male employees.  According to the radical feminist approach, the reason she requested a relatively low salary is a result of the social debasement of women with regards to their professional aspirations and stature in the labor market.  Catherine MacKinnon, “Reflections on Sex Equality under Law,” 100 Yale L.J. 1281, 1298 (1991);  see also Heidi Hartmann, Capitalism, Patriarchy, and Job Segregation by Sex, 1 Signs 137, 167 – 68 (1976)).  As Prof. Catharine MacKinnon, one of the prominent advocates identified with the radical feminist movement, states:

In money economies, income means survival; its treasure and resources also contribute to freedom, human flourishing, enjoyment of life's possibilities. From a social standpoint, income also provides an index of relative social worth…

Without pay equity, sex equality means little in capitalist societies in an increasingly capitalist world. Catherine MacKinnon, Sex Equality 178 (2007).

            In other words, income in market economies is equal to survival, freedom, personal prosperity and the ability to enjoy the range of possibilities that life offers.  Without equal pay, gender equality loses its meaning in an increasing capitalistic world.  For many of us, income is a measure of social status.  Even those who disagree with this assertion will agree that job security and level of income are connected to and certainly affect human dignity. 

           

Additionally, relative bargaining power not only highlights the differences between men and women, but also that of other protected classes in society.

           

In this case, it was proven that an employee, performing the same task as the Petitioner for the same employer, received a higher salary with no relevant justification.  It seems that my colleague, the President, has adopted a balanced solution based on existing legislation.    The Petitioner must prove that she was discriminated against “because of” her gender.  Shifting the burden of proof onto the Respondent to establish that he did not take into account any wrongful considerations – in this case, gender – when deciding how much to compensate her, provides the employer with an “equal opportunity” to disprove the allegation.  It is within the ability of the employer, in terms of his position and power, to show that he did not take into account any wrongful considerations when determining wages.  In this case, the Respondent did not produce evidence proving its justification that it is the store’s policy to determine salaries based on the salary expectations of the employees.  The Respondent, therefore, did not meet his burden of proof.  In this sense, the law creates an overlap between the evidentiary standard and the substantive law under the Equal Job Opportunities Act.  The burden shifting requirement pursuant to Section 9(a) of the Equal Job Opportunities Act fits well within the imbalance of power between the employee-claimant and the employer who must prove the absence of discrimination. 

Justice Neal Hendel

 

Decided as per the opinion of President D. Beinisch (Ret.)

25 Iyyar 5772 (17 May 2012)          

 

 

 

HCJ 8035/07

HCJ 8146/07

 

 

Petitioners in HCJ 8035/07:

1.  Ronen Eliahu

2.  Erez Hindi

3.  Lemon Grass Tel Mond

4.  City Thai Ltd.

5.  Patai Lemon Grass Ramat Aviv Restaurant Ltd.

6.  Romy Ron Ltd.

7.  Honey and Cinnamon Lemon Grass Ltd.

8.  Ginger – Lemon Grass Ltd.

9.  Sheli veShel Michal Ltd.

10. Rafi Michaeli

11. Dror Kakon

12. I.S.R. Lemon Grass

13. Dov Swirsky

14. Glatt Peking Ltd.

15. Rafi levy

16. The Red Asian Restaurant (2003) Ltd.

 

Petitioners in HCJ 8146/07:

1.  Israeli Ethnic Restaurant Association

2.  Peking Restaurant, Lahak Debi Dining and Events Ltd.

3.  Yakuza Sushi Roll Restaurant Ltd.

4.  Korusin (Malha) Restaurant, Ginossar Ethnic Ltd.

5.  Lychee – We Are Different Food Restaurant Ltd.

 

v.

 

Respondents in HCJ 8035/07:

1.  Government of Israel

2.  Ministry of Industry, Trade and Employment

3.  Director of the Support Unit in the Ministry of Industry, Trade and Employment

Respondents in HCJ 8146/07:

1.  Government of Israel

2.  Minister of Industry, Trade and Employment

3.  Minister of the Interior

 

 

 

The Supreme Court sitting as the High Court of Justice

[23 January 2008]

 

Before Justices E.E. Levy, S. Joubran, Y. Elon

 

Petition for an Order Nisi

 

Israel Supreme Court cases cited:

[1]     HCJ 5626/97 Lerner v. Director General of the Employment Service (1997) (unreported).

[2]     HCJ 2836/98 Lerner v. Director General of the Employment Service. Minister of  Labour and Welfare (1998) (unreported).

[3] HCJ 9647/02 Ben David v. Minister of the Interior (2003) (unreported).

[4]  HCJ 3445/05 SushiMai Ltd. v. Ministry of Industry, Trade and Employment (2005) (unreported).

[5]  CJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [1999] IsrSC 53(4) 673.

[6]  HCJ 9722/04 Polgat Jeans Ltd. v. Government of Israel (2006) (not yet reported).

[7]  HCJ 3872/93 Mitral Ltd. v. Prime Minister [1993] IsrSC 57(5) 485.

[8]  HCJ 9723/01 Levy v. Director of the Department of Industry and Services for Issuing Permits to Foreign Workers [2003] IsrSC 57(2) 87.

[9]  CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [1995] IsrSc 49(4) 221.

[10] HCJ 4562/92 Zandberg v. Broadcasting Authority [1996] IsrSC 50(2) 793.

[11] HCJ 4947/03 Beer Sheba Municipality v. Government of Israel (2006) (not yet reported).

[12] HCJ 4593/05 United Mizrahi Bank v. Prime Minister (2006) (not yet reported).

[13] HCJ 956/06 Association of Banks in Israel v. Minister of Communications (2007) (not yet reported).

[14] HCJ 5496/97 Mardi v. Minister of Agriculture [2001] IsrSC 55(4) 540.

[15] CA 4912/91 Talmi v. State of Israel [1993] IsrSC 48(1) 581.

[16] LCA 7678/98 Benefits Officer v. Doctori (2005) (not yet reported).

[15] HCJ 4541/94 Miller v. Minister of Defense [1995] IsrSC 49(4) 94.

[16] HCJ 3648/97 Stamka v. Minister of the Interior [1999] IsrSC 53(2) 728.

[17] CA 10078/03 Shatil v. State of Israel (2007) (not yet reported).

[18] HCJ 5016/96 Horev v. Minister of Transport [1997] IsrSC 51(4) 1.

[19] HCJ 4638/07 Al-Aqsa Al-Mubarak Co. Ltd. v. Israel Electrical Corp. (2007) (not yet reported).

[20] CA Angel v. Bodesky [1992] IsrSC 46(4) 434.

[21] CA 1639/01 Kibbutz Ma'ayan Zvi v. Krishov [2004] IsrSC 58(5) 215.

[22] HCJ 366/03 Commitment to Peace and Social Justice Association v. Minister of Finance (2005) (not yet reported).

[23] HCJ 4769/90 Zidane v. Minister of Employment and Welfare [1993] IsrSC 47(2) 147.

[24] CA 524/98 State of Israel v. Zion Insurance Co. Ltd. [1998] IsrSC 52(2) 145.

[25] HCJ 6962/03 Media Most Co. Ltd. v. Cable and Satellite Broadcasting Council [2004] IsrSC 59(3) 14.

[26] HCJ 4542/02 "Kav La'Oved" Association v. State of Israel (2006) (not yet reported).

[27] AAA 1347/07 Gorong v. Minister of the Interior (2007) (not yet reported).

[28] HCJ 10843/04 Helpline for Foreign Workers v. State of Israel (2007) (not yet reported).

 

For the petitioners in HCJ 8035/07 – D. Holz-Leczner

For the petitioners in HCJ 8146/07 – R. Jarac; S. Luria Hai-Am

For the respondents – M. Zuk

 

JUDGMENT

 

Justice E.E. Levy

1.  The petitions before us concern the decision in principle of the Government to reduce the number of non-Israeli employees in the ethnic restaurant branch (various types of Asian restaurants).  This policy was formulated more than a decade ago, and it has been the issue in several petitions filed in this Court (HCJ 5626/97 Lerner v. Director General of the Employment Service [1]; HCJ 2836/98 Lerner v. Director General of the Employment Service, Minister of Labor and Welfare [2]; HCJ 9647/02 Ben David v. Minister of the Interior [3]; HCJ 3445/05 SushiMai Ltd. v. Ministry of Industry, Trade and Employment [4]).  At present, when the Government is taking concrete steps to implement the policy, it has once again been laid on the doorstep of this Court.

2.  The petitioners, the owners of dining establishments, object to a string of decisions that were made between the years 2004-2007 in which, at the first stage, the number of permits for employing foreign chefs in ethnic and mixed restaurants was reduced, and later, the granting of a permit became conditional upon payment of a high wage to the worker, reflecting the expertise for which the restaurant sought to employ him. In 2009, it was decided that in this branch, it will be permitted to employ only foreign experts, i.e. workers with special skills, whose monthly wage will not be less than twice the national average wage – a sum which today is equal to 15,000 NIS (Government decision no. 2445 of 15 August 2004; no. 3021 of 6 January 2005; no. 4099 of 9 August 2005; no. 4617 of 29 December 2005; no. 446 of 12 September 2006 and no. 1205 of 15 February 2007).

Needless to say, this wage rate is several times the rate currently paid to migrant workers in this branch. It is no wonder, therefore, that these government decisions outraged the restaurateurs, and they were joined in their protest by others, including the Minister of Tourism and senior officials in his office, the Mayor of Jerusalem, the Chairman of the Knesset Finance Committee, members of the Knesset Economic Committee and other public officials. They all explained how much damage these decisions would cause, not only to the ethnic restaurant branch but to the entire Israeli economy.  When their efforts failed and the Government persisted in its position, the petitioners sought the intervention of this Court, asking that we direct that the previously prevailing situation be restored, at least until they are able to recruit Israeli workers to replace those who are presently employed.

The Petitions

3.  The petitioners estimate that the number of migrant workers required for the approximately 250 oriental restaurants operating in Israel today is 1,400.  Without these workers, so it is claimed, these restaurants cannot exist: these workers are at the heart of the restaurants and they alone have the necessary expertise, as it were from the womb, in the preparation of the food that is served.  The petitioners add that the government decisions inflict a mortal wound on the restaurateurs' freedom of occupation, and that although all agree that increasing the rate of employment of Israelis is a worthy cause, the measures that have been adopted to advance this cause are not proportionate.  First, there is no connection between the cessation of employment of migrant workers and opening up of the branch to Israelis.  Significant efforts have been invested by the Ethnic Restaurant Association, in conjunction with the Ministry of Industry, Trade and Employment, to train Israeli workers in the art of oriental cooking, but they have all been in vain. Israelis, even those who are involved in the culinary field, refuse to touch this work.  The petitioners do, it is true, mention that in recent months, the Ministry of Industry – which is responsible for the training of replacement personnel – has been running a trial program to train some one hundred Israelis to work in the branch, but it will be many months before this program bears fruit, if at all.

The petitioners further argue that the ethnic restaurants in Israel provide a livelihood for thousands of local workers, including suppliers, service providers, agricultural workers and food manufacturers, and they make a real contribution to the tourism sector, which provides employment for many more Israelis. According to an expert opinion written by financial consultants and attached to petition HCJ 8146/07, in recent years the number of Israelis employed in the ethnic restaurant branch has increased at a significantly higher rate than the average rate of growth in other branches of the economy (P/26).  Collapse of the branch as a result of government decisions will therefore entail damage that greatly outweighs the benefit gained by reducing the number of migrant workers.  This is even more the case in view of the fact that the non-Israeli workers in the branch constitute only a minute proportion – no more than one percent – of all the foreign workers in the economy; moreover, in other branches the Government – surprisingly – has increased the numbers due to a shortage of workers. Even if the branch is not destroyed, the petitioners are concerned that the financial burden on their businesses will lead to a price increase and harm the population at large, and particularly the weak sectors, who will no longer be able to afford to eat in those restaurants.  Furthermore, they argue, the ability of the public to enjoy the varied food culture available at present, in which the oriental restaurants play an ever-growing part, will be diminished.

The third argument of the petitioners is that it is possible to achieve the same objective by less harmful means, for example, by requiring them to employ a given number of Israelis for every foreign worker. In concrete terms, it was argued that the government edicts are arbitrary with respect both to the number of permits allocated and to the rate of pay that was fixed, and they were not preceded by consultations or discussions with people in the restaurant business.  Why a non-Israeli chef should earn twice the average national wage is a puzzle to the petitioners.  In fixing this wage, they complain, the Government did not draw a distinction between experts in the different branches of industry and services.  The result, devoid of logic in their view, is that a foreign expert in the culinary field will earn an identical wage to that of his counterparts in the fields of medicine or engineering for example, in a manner that deviates significantly from the norm in the restaurant business.

The petitioners supported their petitions with the reports of several investigative committees that were set up by governments over the past decade; these committees recognized the special nature of the branch of ethnic restaurants and the importance of distinguishing it from other branches in which foreign workers are employed (Yankowitz Committee Report of 10 March 1996; Ben-Zvi Committee Report of 14 January 1998; Buchris Committee Report of 16 July 2001; Tal Committee Report of October 2002).  Their position is also supported by the expert opinion of chef Israel Aharoni, which was attached to the petition in HCJ 8146/07, and which explained the complexity of the training required in oriental cookery and the importance of the continued employment of foreign chefs, even if Israelis learn the trade, due to the special nature of the ethnic kitchen and the working methods employed therein. Finally, the petitioners attached expert opinions from accountants who wrote that setting the wage of expert workers at a rate that is twice the average national wage will cause financial losses to a number of restaurants (P/24, P/25).

Discussion

4.  "Freedom of occupation is the freedom to employ or not to employ", stated Justice D. Dorner in CJ 5936/97 Lam v. Director General of the Ministry of Education, Culture and Sport [5]  (at p. 682), following Aharon Barak, who wrote at greater length: "A law that imposes an obligation to employ violates freedom of occupation.  A law that requires not to employ violates freedom of occupation" (Interpretation of Law 3, 597 (1994). See also Ran Hirschl, "Israel's 'Constitutional Revolution': The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order", 46 Am. J. Comp. L.  427, 440 (1998)).  Nevertheless, in HCJ 9722/04 Polgat Jeans Ltd. v. Government of Israel [6], this Court chose not to decide on the question of violation of the freedom of occupation of an employer who is restricted in the employment of foreign workers (per Justice A. Procaccia, para. 21).

This is the basic issue in the case at hand, and in providing a normative answer to it, two aspects of restriction of employment must be considered.  The first is that aspect within the parameters of which the employment of foreign workers whose knowledge or skills are vital for the operation of the businesses in Israel is prohibited – whether absolutely or by a substantial reduction of the number of permits issued.  These workers, as such, are not different from any other resource that is vital for the business, and the restriction of which threatens to negate the employer's ability to operate it (cf. HCJ 3872/93 Mitral Ltd.. v. Prime Minister [7], at p. 505).  And what is the restriction of a businessman's ability to obtain the resources necessary for operating his business, if not a violation of his freedom of occupation? 

'The policy of employment of foreign workers, with all the restrictions that apply by virtue thereof, must take into consideration, inter alia, the basic right of a person to freedom of occupation, and the possible violation of this right where his business requires the employment of foreign workers for whom it is difficult, or impossible, to find replacements amongst local workers …. In the implementation of its general policy, the competent authority ought to consider, inter alia, the occupational requirement of the individual, [and] the extent to which his business is liable to suffer if he is not permitted to employ a foreign worker' (per Justice A. Procaccia in HCJ 9723/01 Levy v. Director of the Department of Industry and Services for Issuing Permits to Foreign Workers [8], at pp. 93, 95).

Another dimension of the restriction of employment draws upon the economic aspect of the right to freedom of employment.  This right, where it involves a commercial enterprise in which a person wishes to engage, also relates to the ability to engage in it under conditions of economic profitability.  A person who proves that he is no longer able to run a profitable business due to a governmental restriction has lifted the burden of proving that his freedom of occupation has been violated.  The criterion ought to be objective, and it should examine whether a reasonable business owner could continue operating a business of a particular type at an acceptable level, despite the additional costs incurred as a result of the legal restriction. Relevant here are rules that restrict the employer's freedom of occupation in that they fix the wage conditions applicable to his workers, including those wages that raise his wage bill in a manner that  forces him to reduce the number of workers.  Indeed, "the question of whether the decision of the authority constitutes a violation of freedom of occupation must be examined materially and not formally.  Freedom of occupation is [also] violated when the decision of the authorities indirectly affects the realization of freedom of occupation in practice" (Lam v. Director General of the Ministry of Education, Culture and Sport [5], at pp. 681, 693).  At the same time, however, we will recall that the State is not under an obligation to create conditions of economic profitability, but only to refrain from actions that counteract such conditions.

Harming the Economic Interest of the Entrepreneur

5. The economic aspect of freedom of occupation extends even beyond the bounds of this right, for it involves financial interests of the person who claims to have been injured.  The owner of a business, even if he is unable to prove that his freedom of occupation has been denied, may be harmed by the very fact that his business has become more expensive.  What shall we call such harm? Does it amount to the restriction of a constitutional right to property, or is it positioned at a lower normative level?  Does this additional cost, which in some aspects resembles costs that are incurred by virtue of the tax laws, bite into the property of the businessman?  In the overall accounting, does it take something away from him?  And to whom does this additional sum that must be paid "belong"?  These are difficult and complicated questions. They involve different conceptions of the right to property.  They confront a nuclear concept of the term "property" with a wider understanding of it.  They raise the question of whether regulatory aspects of the actions of an administrative authority, upon the existence of which the ability of the businessman to realize his economic interest is largely dependent, violate his constitutional right.  They deal with the relationship between the owner of a business and his environment (Charles A. Reich, "The New Property", 73 Yale L.J.  733, 772 (1964)); Yoseph M. Edrey, "Constitutional and Normative Obstacles for the New Tax Legislation" 8 Taxes vol. 6 (1994) a20, 25; Joshua Weisman, "Constitutional Protection of Property: 42 Hapraklit 258, 267 (1995); Aharon Yoran, "The Extent of Constitutional Protection of Property and Judicial Intervention in Economic Legislation" 28 Mishpatim 443, 447 (1997); Eyal Gross, "Property Rights as Constitutional Rights and Basic Law: Human Dignity and Liberty" 21 Iyunei Mishpat 405, 410, 438 (1998); Gregory S. Alexander, "The Social-Obligation Norm in American Property Law", 94(4) Cornell L. Rev. 745 (May, 2009) and refs. therein).

Not for nothing did this Court refrain from ruling on issues such as these, when they arose in the past.  "Does protection of property", asked Justice I. Zamir rhetorically, "also extend to restrictions on employment contracts, such as a provision concerning the minimum wage?" (CA 6821/93 United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 470.  See also President A. Barak, ibid. at p. 431; HCJ 4562/92 Zandberg v. Broadcasting Authority [10], at p. 816; HCJ 4947/03 Beer Sheba Municipality v. Government of Israel [11], per Justice D. Beinisch, at paras. 7-8; HCJ 4593/05 United Mizrahi Bank v. Prime Minister [12], per President A. Barak, at para. 9); HCJ 956/06 Association of Banks in Israel v. Minister of Communications [13], per Justice E. Hayut, at para. 7). Indeed, the question of the damage to property and the extent of its protection requires extensive examination, and necessitates in-depth consideration of legal questions, both theoretical and practical, that are not simple.

However, even if the allegedly injured party did not succeed in lifting the burden of proof, the matter will not be at an end if he showed, instead, that a protected legal interest of his – even one of lesser import than a constitutional basic right – was violated.  When I say "protected interest" I am referring to an interest that would justify the transfer of the burden of proof onto the shoulders of the State to show that the violation was lawful.  An anchoring link is required, which would change a "regular" interest into one that gives rise to a claim vis-à-vis the authority.  This link could lie, inter alia, in a statutory act that confers a right – one that does not enjoy constitutional status – by means of an administrative action in which the person's interest is guaranteed, or through a person's reliance on existing government policy or legitimate expectations in light thereof. In the words of Justice Zamir:

'Protection is generally granted to vested rights.  In certain circumstances, however, the interest of reliance or the need to fulfill legitimate expectations also justify the granting of protection to an interest that does not amount to a right in the accepted sense or to an interest that has not yet crystallized into such a right' (HCJ 5496/97 Mardi v. Minister of Agriculture [14], at p. 552.  See also CA 4912/91 Talmi v. State of Israel [15], at p. 625; LCA 7678/98 Benefits Officer v. Doctori [16], per Justice A. Procaccia, at para. 20).

Judicial Review

6.   When a governmental action violates a right or a protected interest, recourse to administrative law to examine the constitutionality of that action is justified. This involves an examination of the purpose of the action and the extent of the harm that it causes, and use is made of tools that originate in the criteria of the limitation clause in the Basic Laws (HCJ 4541/94 Miller v. Minister of Defense [15], at p. 138). These tools render the review of administrative actions more precise, and facilitate the judicial decision-making process   (HCJ 3648/97 Stamka v. Minister of the Interior [16], at p. 777; CA 10078/03 Shatil v. State of Israel [17], at para. 22 of my judgment).  Their efficacy, as well as the need to invest the process of judicial review in all its aspects of the administrative enterprise with a systematic and consistent character, justify their application both when a constitutional right is affected, and when a right or a protected interest which have a lesser normative status are affected (HCJ 5016/96 Horev v. Minister of Transport [18], at p. 43; HCJ 4638/07 Al-Aqsa Al-Mubarak Co. Ltd. v. Israel Electrical Corp. [19], per Justice U. Fogelman, at para. 8).

Even though identical tools are used for the examination, the distinction between violating a constitutional right and a value of a lower status finds expression in the contents that are revealed by application of these tools.  I am referring mainly to the third criterion of proportionality, i.e. the "narrow" criterion, that places on one side of the scales the benefit of the administrative action and on the other, the damage, in all its aspects.  Clearly, where the right that has been violated is a constitutional right, the other side – counterbalancing the violation – must be more heavily weighted.

Assessment of the harm and determination of constitutionality require both a factual and a normative basis.  We refer to the facts particularly at the stage of identifying the violation, in determining its magnitude and in examining proportionality.  Most of the factual issues can only be resolved on the basis of information submitted by the parties to the court and proved in their evidence, since the judicial body is generally lacking independent tools with which to establish facts (CA Angel v. Bodesky [20], at p. 437; CA 1639/01 Kibbutz Ma'ayan Zvi v. Krishov [21], at p. 273; Barak supra, at p. 479). At first, the burden of submitting the information is borne by the petitioner, who is claiming a violation of a right.  If he is successful, the burden moves onto the shoulders of the administrative authority, which must show that the violation is lawful (United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 428, per President Barak; HCJ 366/03 Commitment to Peace and Social Justice Association v. Minister of Finance [22], paras. 10, 18 of my judgment). The factual examination need not necessarily reflect hindsight.  A well-founded expectation that a factual development will eventuate is sufficient.  However, the person making a claim about a situation that has not yet occurred bears the burden, which at times is not light, of showing a real chance that his expectations will be realized.

7. The normative aspect expresses itself primarily in the requirement of a proper purpose for the administrative act and in the test of "narrow proportionality" mentioned above.  In investigating this aspect we must follow the dictates of logic and morality and the public consensus; we must identify the fundamental elements of the regime and of the prevailing social order; and we must locate and develop concepts of the good on which they are based.  The advantage of the High Court of Justice here lies in the fact that it is an external body that is not involved in the administrative act; in its freedom from the political partisanship which is dominated primarily by passing trends; in the analytical tools which the law makes available to it,   and in the special role reserved for it in advancing the basic principles of justice and morality, mandated by its name and by the judicial tradition that developed in the court from the early days of the State.  At the same time, as a body that is scrupulous in maintaining the separation of powers in the substantive sense, the Court will take care not to put itself in the shoes of the administrative authority in determining appropriate policy and implementing it, even if it believes that it would be better to adopt a different policy.  "The application of powers vested in the court", wrote President M. Shamgar, "should be properly exercised in a way that refrains from turning the Court into a body that actively shapes the economic policy that it deems to be correct or preferable"  (United Mizrahi Bank Ltd. v. Migdal Cooperative Village [9], at p. 331 [emphasis in original]; see also HCJ 4769/90 Zidane v. Minister of Employment and Welfare [23], at p. 172; CA 524/98 State of Israel v. Zion Insurance Co. Ltd. [24], at p. 151; HCJ 6962/03 Media Most Co. Ltd. v. Cable and Satellite Broadcasting Council [25], at p. 30). Indeed, the court does not, and does not purport to engage in determining practical policy.  The point of departure for judicial review is that insofar as the court is asked to deal with questions of policy, it will refrain from doing so.  As stated in the specific context of the issue with which we are concerned:

'Tackling the issue of foreign workers is complex.  It involves taking into consideration a wide range of interests.  It involves taking into consideration the foreign workers themselves, their employers, and the needs of the Israeli economy and Israeli society as a whole.  It gives rise to difficult professional, economic and social questions that require responses on different planes.  In these circumstances, the intervention of the court in the selection of measures by the administrative authority for dealing with the issue confronting it will be narrow and limited' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 14).

Armed with all the above, I am now able to examine the arrangement that is the subject of this case.

Employment of Chefs from Overseas in the Field of Ethnic Restaurants

8.  The phenomenon of migrant workers has a significant impact on the Israeli economy and on the employment market in general.  Even those who support the phenomenon cannot deny the complex problems to which it gives rise, some of which are interconnected.  Several of them have been dealt with in past judgments of this court (HCJ 4542/02 "Kav La'Oved" Association v. State of Israel [26]; AAA 1347/07 Gorong v. Minister of the Interior [27]; HCJ 10843/04 Helpline for Foreign Workers v. State of Israel  [28]), and it will suffice to mention the detriment to the employment of Israeli workers, the rate of pay that is dragged downwards due to the effect of cheap labor, the negative treatment of the "foreign" worker – the few legal protections result in consistently decreasing his marketability – and the problems of the existence of a large sector that is not perceived to be an integral part of Israeli society, although it has lived and functioned within the society for many years.  After a long period in which governments in Israel ignored these problems, a policy for dealing with them began to take shape.  There will be those who argue with the degree of success of this policy, with the suitability of the measures that are adopted within its framework or with the conceptions on which it is based.  But it would seem that it is no longer possible to avoid the conclusion that without regulatory intervention, no response will be found for the whole set of problems as described, in that market forces alone are inadequate to provide a solution, as reality has proved time after time.  In order for this policy to succeed, it must take a comprehensive view of the issue.  This is no simple task that has been laid on the shoulders of the State, in view of the complexity of the problems, the myriad interests and interested parties that are involved, and the direct and indirect effects of any policy that will be adopted on the economy, on society and on the individual.

9.  Do the decisions that are the subject of this proceeding have an inordinately damaging effect on the protected interests of the individual, i.e. of the restaurateur who wishes to employ foreign chefs?  We are concerned, first and foremost, with the factual question.  The petitioners laid on our doorstep – as I mentioned above – evidence of a violation of their freedom of employment – a violation which according to them has already occurred and will become even more severe in future.  In my view, however, the material that was submitted does not constitute sufficient grounds for the existence of a violation of this constitutional right, in any of the aspects presented above.

First, it is clear that the government decisions do not prevent the restaurateurs from employing foreign workers.  Permits will be issued, even if their number will be lower than in the past and even if the cost involved in obtaining them is higher.  I have not found in the petitions, nor even in the oral pleadings, a claim that the number of permits for the employment of foreign experts in each restaurant is not in keeping with the required number of workers. The petitioners do not argue that even were they prepared to accept the pecuniary decree, the number of permits offered to them would not meet their employment needs.  Indeed, the Government does not wish to deny the restaurateurs the ability to benefit from the particular characteristics of those workers – which give them, at least at present, an advantage over the employment of Israelis, and I am referring to the knowledge, the skills, the work ethic and even to appearance and language.  On the contrary, in acknowledging that these workers have special characteristics that render them sought after in the local restaurant sector, the Government seeks to entrench their position such that on the one hand, a person who does not meet these special criteria will not be employed, and on the other, those who are employed will be suitably recompensed.  This policy, so it has already been ruled, attributes suitable weight to the interest of the employer in allocating permits for the employment of foreign workers (Polgat Jeans Ltd. v. Government of Israel [6], at para. 15).

The crux of the matter is, therefore, the economic profitability of employing those workers under the new conditions, and in practice - the relationship between the commercial advantages inherent in their employment and the cost to the employer.  There is no doubt that setting a wage rate at twice the national average greatly increases the latter component.  But will the effect on the benefit that the employment of those workers brings to the business be so drastic as to negate the profitability of the enterprise?  I cannot deduce this from the information that was submitted by the petitioners.  The expert opinions relating specifically to a limited number of restaurants – four out of two hundred and fifty (P/24) – which, it was argued, would face financial loss, do not suffice, nor does the general statement that this would be the fate of "many other restaurants" (P/25). What is required is specific data on the effect of the new policy on this branch, and the petitioners did not provide this.  More importantly, the expert opinions that were submitted relate to the existing system of management of the restaurants.  Nothing in the data that was presented indicates that it is not possible to operate an ethnic restaurant successfully, in a reasonable manner, even with the new rates of pay.

At the present time it is difficult to say whether implementation of the new policy will deprive the ethnic restaurants in Israel of their ability to exist as profitable enterprises or affect their special cultural character, or whether the petitioners will succeed in finding a solution for the problems that have arisen, particularly if the State provides some support.  The unknowns are numerous.  Is the wage that is currently paid to non-Israeli chefs reflective of their true market power?  Is the price level at the ethnic restaurants, and their number, in keeping with the demand for the service that they offer?  Will the new policy, along with the effort that is being invested in the training of Israelis in the art of ethnic cookery, lead to an opening up of the branch to Israeli labor?  Will the owners succeed in adapting themselves to the new regulatory policy?  These and other questions require solutions in real life.  I have not been offered even the beginning of a satisfactory answer to them, and therefore I cannot establish that the petitioners laid the grounds for a conclusion concerning a violation of their freedom of employment.  The same applies with respect to the question of a violation of a property right, which was not even mentioned in the petitioners' pleadings.  They did not base their petitions on this issue, and did not submit evidence to prove it.  What they omitted, the court will not complete in their stead.

10.  The foundation has not, therefore, been laid for determining that any of the constitutional rights of the petitioners has been violated.  Things are different with respect to the question of damage to a protected economic interest, the status of which is inferior to that of a constitutional right.  There is no doubt that even if the petitioners succeed in keeping their businesses operating under the new conditions, the direct effect of the new policy – the need to pay a wage that is higher than the norm and an increase in costs – will worsen their financial situation.  Indeed, the petitioners have no vested right to be permitted to employ workers at low wages, but a change in the policy that prevailed for many years, in the framework of which the wages of foreign workers were not dealt with, provides the required opening for putting the decisions to the tests of proper purpose and proportionality.

I have already discussed the proper nature of the purpose, and we are therefore left with the question of proportionality.  In my view, the State succeeded in showing that its decisions were compatible with the requirements of all three tests of proportionality.  First, at the present time and as long as reality has not proved otherwise, there is no basis for challenging the assumption concerning the existence of a rational connection between the policy that is implemented and the purpose that the government wishes to achieve. Support for the State position can be found not only in the dictates of common sense, but also in the data that was submitted by learned Counsel for the State, Adv. M. Zuk, which relates to what is happening in other branches in which foreign workers are employed.  The data indicates a clear connection between the change in the rate of employment of non-Israeli workers, and the change in the number of Israeli workers employed in the agricultural sector (para. 56 in the State's response) and in the construction sector (para. 55).  In the latter sector, the results of the government policy to limit the dimensions of employment migration, which led to a significant increase in the number of Israelis who were employed, was demonstrated (ibid.). The argument of the petitioners concerning the exclusive characteristics of the restaurant business is not devoid of logic, but they will have to back it up with factual data, which at present they do not have.

11.  On the matter of the alternative measure, I will mention again the combined aims of the government policy: to increase the number of Israelis employed; to narrow the gap between the value of labor of the employee – Israeli and non-Israeli – and between the rate of pay he receives, and to reduce the number of foreign workers who are not essential to the employer. I find it difficult to envisage any alternative to the solution adopted by the State that could achieve these aims.  The petitioners' proposal to employ a certain number of Israelis per each foreign worker does not meet the requirement, since it would appear that a fundamental element in achieving those aims is raising the status of the said field of employment.  In these circumstances, the foreign workers would continue to be employed at low rates of pay, similarly low pay would be offered to Israelis, and the latter will continue to shun this field of employment.  As for the rate of pay that was set, it would appear that any rate that was set would have been arbitrary to some extent, for in the nature of such things it is difficult to quantify precisely the value of the employment of foreign experts in each of the restaurants, as it is in relation to each of the other branches of labor.  The main thing, in my view, is that the rate which is set is acceptable and not obviously excessive.  Finally, I will say that the new arrangement has been implemented gradually, and it has not struck the petitioners like a thunderbolt out of the blue. In this way, undoubtedly, the detrimental effect on them has been reduced in a manner befitting the rationale underlying the second criterion of proportionality.

12.  As for the balance of benefit:  here, too, the petitioners are hindered by the absence of factual data which could indicate the extent of anticipated damage in all the areas that they claim.  At present, the basis has not been established for the claim whereby the policy that has been adopted will reduce the number of Israelis employed, because it will affect the leisure culture of the public, harm the tourist industry or widen the gap between the different classes in Israel.  All that has been placed on the side of the drawbacks is the added costs to the restaurateurs – an economic interest which prima facie, and from a normative aspect, does not counterbalance the potential benefit in realizing the government aims.  The balance that was struck is not without foundation.  It is not unreasonable.  Its source does not lie in some governmental caprice, but rather, in policy that was formulated after extensive investigation of the subject, and which is compatible with the economic and social agenda of the Government.  It does not, therefore, warrant judicial intervention.  How the balance of benefit will appear with the passage of time and as the results of the selected process become clear, only time will tell.  At the present point in time, the State has succeeded, in my opinion, in showing that this balance tilts in favor of its decisions, and with this it has fulfilled its obligation to demonstrate that the harm caused by these decisions does not exceed that which is required.

Damage to Other Protected Values

13.  I also find the claim of discrimination between employers, which is based on the different rules governing each of the branches requiring foreign workers, to be unsubstantiated at present.  This is a dual-pronged argument: first, that the policy of reducing the number of permits was not implemented in relation to other occupations, i.e. a similar norm should have been instituted not only in relation to restaurants but in all the branches that avail themselves of foreign workers; secondly, the determination in relation to the wage that must be paid is not sufficiently sensitive to the special characteristics of the branch of ethnic restaurants, which is to say that the branches should have been differentiated.  The reason for dismissing the claim of discrimination, in both its aspects, does not lie in this apparent contradiction, but in arguments touching upon the substance of the matter.

First, in relation to the number of permits:  It has already been ruled that each branch in the economy has its own needs, and each branch has a policy befitting its own context.

 'Policy relating to branches is directly influenced by the needs of the branch for personnel of different types, and it changes from branch to branch in accordance with the structure, the requirements and the particular problems of each.  This is a matter of different arrangements that are engendered by different requirements, and this does not give rise to a claim of discrimination' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 17).

Accordingly, it is possible to adopt a policy that distinguishes between the different branches on the basis of the degree of necessity of employing non-Israeli workers.  In the case before us, the Government decided that in the industrial and services sectors, insofar as there is a need for employing non-Israelis, it is experts that are required.  These, as I have already ruled, are available to the restaurateurs, as long as they fulfill the wage requirements.

As for the rate of pay: the argument of the petitioners is that "it is not possible to compare an expert oceanographer with an expert heart surgeon, architect, builder or expert ethnic chef" (para. 32 in HCJ 8035/07), which prima facie seems to be a seductive argument, but which in effect is worthless.  It must be recalled that the government decisions are not aimed at fixing a unified wage rate for immigrant workers.  Rather, they seek to set a minimum level below which employment of a non-Israeli will not be permitted, thus realizing the principle that requires that there be an advantage to hiring a foreign worker, other than his willingness to work for a low wage.  In order for the argument concerning discrimination to succeed, the petitioners would have had to show that in other branches, such as those specified above, the wage rate that was fixed was not effective in the realization of this principle. Not only did the petitioners not do so – once again the factual aspect of their petition was deficient – but it seems that in most of the occupations to which the argument relates, that principle is anyway realized by virtue of the special skills of the workers, to the extent that there is no longer a need to guarantee it by setting a particular wage rate. Justice Procaccia discussed this as well, writing as follows:

'In the industrial sector, the arrangement for issuing permits for the employment of foreign workers with special expertise is built on high wages.  In the fields of agriculture and construction, the arrangement is built on the employment of workers with regular skills.  This difference reflects on the level of wages paid to the workers' (Polgat Jeans Ltd. v. Government of Israel [6], at para. 17).

At the same time, I will emphasize what seems to me to be obvious, i.e. that the declarations of the State concerning the common normative basis for its policy in each of the branches that have recourse to migrant workers, cannot remain on paper alone.  Wherever the State encounters difficulty in standing by its word and realizing the aims that served as its beacon in this matter – and I need only mention the discussion in the abovementioned case of Helpline for Foreign Workers v. State of Israel [28] – it will have difficulty in remaining convincing about its proper management of the whole issue.

14.  If I saw fit to dwell further on any of the arguments of the petitioners, it would be on the matter of the right of pleading, or what they call the "duty to consult" prior to the said decisions being taken.  As the petitioners themselves demonstrated, the formation of the present policy was preceded by a long process of investigation throughout which – as transpires from the appendices to the petitions – the petitioners expressed their position openly, by means of a serious lobby of public figures, with appearances in committees charged with the subject and in letters that were sent to the competent bodies. In these circumstances, there is no doubt that their position did not remain unheard, and it is as well-known as it need be to the decision-makers.  Thus the purpose underlying the right to plead has been realized.

I do not make light of the petitioners' concerns.  It is natural that a person looks out for his own interests. It is also natural that the owner of a business strives to maximize his profits.  But the Government – with a wide perspective – sought to provide a response to problems that extend beyond the particular concern of the petitioners, and the latter have not, as yet, succeeded in showing that they cannot adapt themselves to this policy, or that its disadvantages, overall, outweigh its advantages.  The burden of proof required for establishing grounds for judicial intervention has therefore not been lifted.

For this reason, I propose to my colleagues that we deny the petitions and cancel the interim order that was issued.  I further propose that we obligate the petitioners, in each of the petitions, to pay the respondents costs in the amount of 20,000 NIS.

 

Justice S. Joubran

I agree.

 

Justice Y. Elon

I agree.

 

Decided as per the judgment of Justice E. E. Levy.

 

16 Iyyar 5768

21 May 2008

 

 

HCJ 6778/97

Association for Civil Rights in Israel

v

1.       Minister of Public Security

2.       Israel Police

3.       Israel Prisons Service

4.       The Knesset

5.       Civil Service Commission

6.       Customs and VAT Department

7.       Attorney-General

 

The Supreme Court sitting as the High Court of Justice

[12 January 2004]

Before President A. Barak, Vice-President T. Or and Justices E. Mazza, M. Cheshin, D. Dorner, D. Beinisch, E.E. Levy

 

Petition to the Supreme Court sitting as the High Court of Justice

 

Facts: The petitioner challenged the respondents’ recruitment policies, which restrict the age of job applicants to a maximum of thirty-five or forty. The petitioner argued that these policies were discriminatory on the basis of age and therefore unlawful. The respondents argued that the policies were required by the demanding nature of the work.

 

Held: In the absence of evidence justifying their policies, the Supreme Court held that the recruitment policies of the respondent were indeed discriminatory on the basis of age and therefore void.

 

Petition granted.

 

Legislation cited:

Employment Service Law, 5719-1959.

Equal Employment Opportunities Law, 5748-1988, ss. 2, 2(a), 2(c), 17.

Police Ordinance [New Version], 5731-1971, s. 17.

Police (Recruitment) Regulations, 5718-1957, rr. 1, 2.

Prisons Regulations, 5738-1978, r. 61(2).

 

Israeli Supreme Court cases cited:

[1]      HCJFH 4191/97 Recanat v. National Labour Court [2000] IsrSC 54(5) 330.

[2]      HCJ 678/88 Kefar Veradim v. Minister of Finance [1989] IsrSC 43(2) 501.

[3]      HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [1998] IsrSC 52(4) 193.

[4]      HCJ 6051/95 Recanat v. National Labour Court [1997] IsrSC 51(3) 289.

[5]      FH 10/69 Boronovski v. Chief Rabbis [1971] IsrSC 25(1) 7.

[6]      HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture & Sport [1995] IsrSC 49(5) 1.

[7]      HCJ 7111/95 Local Government Centre v. Knesset [1996] IsrSC 50(3) 485.

[8]      HCJ 720/82 Elitzur Religious Sports Association, Nahariya Branch v. Nahariya Municipality [1983] IsrSC 37(3) 17.

[9]      CA 3798/94 A v. B [1996] IsrSC 50(3) 133; [1995-6] IsrLR 243.

[10]    CFH 7325/95 Yediot Aharonot Ltd v. Kraus [1998] IsrSC 52(3) 1.

 

American cases cited:

[11]    E.E.O.C. v. Wyoming, 460 U.S. 226 (1983).ב

[12]    E.E.O.C. v. County of Los Angeles, 706 F. 2d 1039 (1983).ו

[13]    E.E.O.C. v. County of Allegheny, 705 F. 2d 679 (1983).נ

 

Canadian cases cited:

[14]    Re Can. Human Rights Com’n & Greyhound Lines (1987) 38 D.L.R. (4th) 724.ב

[15]    Re Air Canada and Carson (1985) 18 D.L.R. (4th) 72.ו

[16]    Saskatchewan (Human Rights Comm.) v. Saskatoon [1989] 2 S.C.R. 1297.

 

For the petitioner — G. Stoppler, Dan Yakir.

For the respondents — N. Elstein, Director of the Labour Disputes Department at the State Attorney’s Office.

 

 

JUDGMENT

 

 

President A. Barak

The State of Israel is not prepared to recruit policemen, prison warders and customs inspectors if the candidates are over thirty-five or forty years old (see below). Is this approach lawful? This is the question before us.

Background

1.    The State of Israel invited the public to apply for jobs as police prosecutors. The invitation said that only candidates whose age was less than thirty-five years were eligible to apply and submit their candidacy. This age was also stipulated as a preliminary condition in the job specification for customs inspectors. Subsequently, an invitation was published for the employment of security personnel in a State hospital. It was stipulated that only candidates whose age did not exceed forty would be accepted for employment. The Knesset Guard also restricted entry into its ranks to twenty-five years. The petitioner, the Association for Civil Rights in Israel, applied to the State. It argued that in stipulating the requirement of a maximum age, the State was discriminating against all persons who did not satisfy the age requirement. Since it was unsatisfied by the reply, it applied to this court. With the consent of the parties, we regarded the petition as if an order nisi had been given. Several hearings were held. Following a decision of the original panel of judges, the panel was expanded. We delayed giving our judgment, inter alia, because we waited for judgment to be given in HCJFH 4191/97 Recanat v. National Labour Court (hereafter — ‘the Recanat further hearing’) [1]. We also asked the parties for their response to that judgment. In addition, we waited for updates concerning changes in the employment policies of the respondents. Moreover, general developments concerning the connection between the age of the employee and the employment policy were brought to our attention. Thus, for example, the report of the Public Commission for Examining the Work Retirement Age was submitted for our perusal. In the course of the trial, the problem of the candidates for the Knesset Guard was solved. We were told that the previous policy, which restricted the Guard’s recruitment age to twenty-five years, had been cancelled. Instead it was stipulated that the aptitude of each candidate would be examined in accordance with his abilities, physical condition and state of health, taking into account the requirements of the position. We were also told that the Israel Prisons Service no longer stipulates a maximum age in its advertisements, but it is a consideration that they take into account in so far as security jobs or essentially similar jobs (‘specific-assignment jobs’) are concerned. A similar picture was obtained from the Customs Department.

2.    Several developments have occurred in the recruitment policy of the police. At first we were told that the police continue to restrict the age of all the candidates for its jobs, even though with regard to the recruitment of professional staff the age restriction is not published in the employment advertisements, and in exceptional cases even someone who is older than thirty-five may be accepted for a professional job. During the hearing that the court held on the petition, we proposed that the respondents consider the possibility of adopting an employment policy on an individual basis when accepting candidates for employment. We were further told that the police are considering undergoing a process of ‘civilianization’ with regard to some of its jobs. In our decision we decided that ‘counsel for the respondents was requested… to submit to us a response in writing with regard to the proposal that was made to conduct a trial — or an “individual recruitment committee” — and also to prepare a timetable for the date of the “civilianization”.’ On 7 November 1999 we received the response of the respondents in this regard, from which it emerged that the police intended to conduct a trial during their 2000-2001 recruitment, for which the maximum age would be raised to 45 years for recruitment for non-specific assignments. We were also told in a notice from the respondents that the police have made a change with regard to the manpower that they employ. In the first stage, the police began, in the last two years, to accept civilian manpower and to carry out a ‘civilianization’ process for jobs with no specific assignment through personnel placement companies or by purchasing services from external contractors. By the date of filing the notice, approximately 1,000 jobs in various fields had been ‘civilianized.’ In response to this, the petitioner points out that the trial that the police conducted relates only to jobs that have no specific assignment, and it cannot provide a solution to the discrimination that exists, according to the petitioner, with regard to the specific-assignment jobs.

The parties’ contentions

3.    The petitioner claims that the respondents’ policy constitutes age discrimination. This discrimination is prohibited on a general constitutional level, in view of the constitutional obligation of the respondents to uphold equality, human dignity and freedom of occupation. This discrimination is prohibited also by statutes that specifically address labour relations, including the Equal Employment Opportunities Law, 5748-1988, and the Employment Service Law, 5719-1959. According to the petitioner, in Israel the problem of age discrimination is serious, and it should therefore be treated with the utmost seriousness. The statutory exceptions that allow the rejection of candidates for jobs — inter alia on the grounds of age — should be construed narrowly. It argues that the defence in s. 2(c) of the Equal Employment Opportunities Law should not be available to the respondents, since there is nothing in the jobs under discussion in this petition that justifies an age limit for someone wishing to be considered as a candidate. In any event, the respondents have not discharged the burden imposed on them to justify their discriminatory policy. The policy is not founded on facts and a proper evidential basis but on generalizations and stereotypes. Consequently the regulations that were made by the respondents and their recruitment policy, which stipulate age restrictions for entering into their employment, are void.

4.    The respondents claim that the proper normative framework for contending with the petitioner’s contention of discrimination is the Equal Employment Opportunities Law. Within the framework of this law, the employment policy and regulations are not discriminatory. They argue that a person’s age adversely affects his physical and mental functioning and it therefore affects the ability of older candidates to carry out their job properly. Thus, in so far as customs inspectors are concerned, the job requires a high level of physical and mental fitness. An individual examination of each candidate cannot predict his ability to withstand this burden. In so far as the Prisons Service is concerned, the warders are required to have a high level of physical and mental fitness. The retirement age from the Prisons Service is an early one because of the exhausting nature of the job. Against this background, it is justified to employ the criterion of age for the purpose of recruitment into the Service. The respondents explain that in the Prisons Service there is a distinction between the job of warder and administrative or professional jobs, and with regard to the recruitment of the latter there is no age limit. With regard to employment by the police, the respondents claim that a high level of physical and mental fitness is required. Unlike the Prisons Service, in the police even policemen who work in administrative and professional jobs are sometimes required to carry out operational police activities during their service. Operational policemen start ‘at the bottom’ and work their way up the ranks. The employment of older policemen under the command of younger policemen would lead to practical difficulties and harm the functioning of the police which is based on a chain of command. Creating a range of age restrictions for recruitment to different jobs in the police force would harm the police’s commitment to uniformity. The respondents also claim that voiding the regulations and the employment policy of the respondents would affect the whole of the police service. It would affect the retirement age of policemen, the grounds for their dismissal and the terms of service, since a group employment outlook with internal logic and balance would be replaced by individual employment that would harm the employers. Thus, for example, the police do not dismiss older policemen whose physical strength is weakened, but takes care to assign them to other jobs that suit their capabilities. This policy, in the respondents’ opinion, creates a mixture of young policemen and old policemen that can exist only by restricting the age of recruitment into the Service. In view of this, the respondents claim that cancelling the age restriction would harm their ability to carry out their public duties relating to security and other interests under their authority. The respondents refer to comparative law according to which, they claim, age discrimination is not considered to be on the highest level of severity. Greater judicial restraint should be exercised when considering an employment policy that is alleged to be age discriminatory. In view of all of the aforesaid, the respondents claim that the balance reflected by the regulations and their employment policy is reasonable and does not justify the intervention of this court.

The normative framework

5.    The policy of the respondents with regard to the age of the candidates for recruitment into the police and the Prisons Service is encompassed in subordinate legislation (see r. 1 of the Police (Recruitment) Regulations, 5718-1957 (hereafter — the Police Regulations); r. 61(2) of the Prisons Regulations, 5738-1978). In so far as the employment of customs inspectors is concerned, this policy is encompassed in the internal directives issued by the Director of Customs and Excise. The main question before us is whether the respondents’ policy is unlawfully discriminatory between job applicants on the basis of age. We have been referred in this regard to various legal sources. In my opinion, these arguments should be focused on the framework of the Equal Employment Opportunities Law, which also applies to the State as an employer (s. 17). The key provision is in section 2 of the law, which states:

‘Prohibition against discrimination

2. (a) An employer shall not discriminate between his employees, or between candidates for employment on the basis of their sex, sexual orientation, personal status, parental status, age, race, religion, nationality, country of origin, outlook, party affiliation or reserve army service, enlistment for reserve army service or anticipated reserve army service as defined in the Defence Service Law [Consolidated Version], 5746-1986, including on account of its frequency or duration, with respect to any of the following:

 

 

(1)   giving employment;

(2)   conditions of employment;

(3)   promotion in employment;

(4)   training or professional studies;

(5)   dismissal or severance pay.

(6)   benefits and payments given to an employee with regard to retirement from work.

 

(a1) …

 

(b) For the purposes of subsections (a) and (a1), making irrelevant conditions shall also be regarded as discrimination.

 

(c) Discrimination shall not exist under this section when it is required by the character or nature of the job or position.’

The statute does not define what ‘discrimination’ is. In the absence of details as to a special outlook in this matter, the general laws concerning equality and discrimination in Israeli law apply (see the Recanat further hearing [1], at p. 343).

6.    Equality in the case before us means equal treatment for persons who are equal and different treatment for persons who are different. Discrimination means different treatment for persons who are equal and equal treatment for persons who are different (see HCJ 678/88 Kefar Veradim v. Minister of Finance [2], at p. 507; HCJ 1703/92 C.A.L. Freight Airlines Ltd v. Prime Minister [3]; I. Zamir, M. Sobel, ‘Equality Before the Law,’ 8 Mishpat uMimshal (2000) 165. It follows that equality does not require identical treatment. Sometimes in order to achieve equality we need to act differently. Not every different treatment is discriminatory treatment. The principle of equality is therefore based on the relevant approach. ‘Discrimination is, of course, a distinction between persons or things for irrelevant reasons’ (Justice M. Cheshin in HCJ 6051/95 Recanat v. National Labour Court (hereafter — ‘the Recanat original hearing’) [4], at p. 312). ‘The concept of equality means equal treatment of persons who are not different from one another in any way that is relevant to the matter that is the subject of the equality’ (the Recanat further hearing [1], at p. 345). This was well expressed by President Agranat, who said:

‘In this context, the concept of “equality” therefore means “relevant equality,” and it requires, with regard to the purpose under discussion, “equality of treatment” for those persons in this state. By contrast, it will be a permitted distinction if the different treatment of different persons derives from their being, for the purpose of the treatment, in a state of relevant inequality, just as it will be discrimination if it derives from their being in a state of inequality that is not relevant to the purpose of the treatment’ (FH 10/69 Boronovski v. Chief Rabbis [5], at p. 35).

The key question in the petition before us is whether the age distinction between the candidates for the job — who constitute the ‘equality group’ in the case before us — is relevant for the job that the candidates wish to obtain.

7.    Indeed, the State’s duty is to treat the candidates for the job equally, and not to discriminate between them. One typically discriminatory situation is age discrimination during recruitment for employment (see R. Ben-Israel, Equal Opportunities and the Prohibition of Discrimination at Work, vol. 3 (1998), at pp. 1043-1044; S. Rabin-Margaliot, ‘Age Discrimination in Israel: A Power Game in the Labor Market,’ 32 Hebrew Univ. L. Rev. (Mishpatim) (2002) 131). In the reality of modern life, in which the workforce is growing older, awareness of the existence of age discrimination should also increase (the Recanat original hearing [4], at p. 341; for a general discussion, see R.A. Posner, Aging and Old Age, University of Chicago Press, 1995). This awareness is important, inter alia, when considering imposing restrictions at the stage of accepting job applicants, which is the gateway into the employment market (Rabin-Margaliot, supra, at p. 161). Against this background, the State’s duty is to examine the candidacy of the job applicant on its merits without restricting the age of the candidate in advance, unless the job that the candidate is seeking justifies the stipulation of a maximum age. If the job requires the stipulation of a maximum age for job applicants, then the stipulation of that age does not constitute discrimination between the job applicants on a basis of age. The difference in the age requirements is justified in this situation by the difference in the job, and it does not involve any age discrimination. We have a relevant difference (in the job), which eliminates discrimination (on the basis of age) (see the Recanat further hearing [1], at p. 347). Indeed, the rule prescribed in s. 2(c) of the Equal Employment Opportunities Law and the rules prescribed in s. 2(c) thereof are merely the two sides of the same coin; it is not a rule (that prohibits discrimination) and an exception (that recognizes the discrimination), but two aspects of the rule itself, such that the two viewpoints ‘should be read together’ (Justice M. Cheshin in the Recanat original hearing [4], at p. 313).

8.    The relevance test must provide an answer to the question whether the job particulars require the stipulation of a maximum age for the job applicants. The relevance test should determine whether the stipulation of a maximum age for the job applicant ‘is required by the character or nature of the job or position’ (s. 2(c) of the Equal Employment Opportunities Law). The question is whether stipulating a maximum age for the job applicants is ‘reasonably required by the nature of the worker’s job’ and whether it is proportional (the Recanat further hearing [1], at p. 348; see also S. Rabin-Margaliot, ‘The Elusive Case of Employment Discrimination: How Do we Prove its Existence?’ 44 HaPraklit (1999) 529). The test is, in the final analysis, a test of reasonableness and proportionality. I discussed this in the Recanat further hearing [1], where I said:

‘The relevance test demands that the job requirements… are reasonably necessitated by the nature of the job. The test is therefore a test of reasonableness… the question is always a question of balance. The question is whether the weight given to these considerations among all of the considerations is reasonable…

It also follows that the question of proportionality must be taken into account. Are the job requirements that the employer chose — and according to which a different retirement age was determined for different employees — proportional?’ (ibid., at p. 349).

9.    Within the framework of the requirements of proportionality, one must take into account the sub-test according to which the administrative measure chosen should harm the individual to the smallest possible extent (see HCJ 3477/95 Ben-Atiya v. Minister of Education, Culture and Sport [6], at p. 12). When the alleged harm is age discrimination, one should examine whether the job qualifications that were stipulated prejudice equality between job applicants to the smallest possible extent (see the Recanat further hearing [1], at p. 349). Indeed, when the job requirements include physical strength and the ability to withstand physical effort, the smallest possible degree of harm will be caused to job applicants if the physical examination is done on an individual basis and a minimum age is not stipulated for the various candidates. This will make redundant the claim that the minimum age requirement is based on a stereotype that only a young person is strong, and it will prevent discrimination. In the Recanat further hearing [1], which it will be remembered concerned requirements that the employer made with regard to the pleasant appearance and physical strength required by air stewards, I asked:

‘… even if we say that a pleasant appearance and physical strength are prima facie required by the nature of the job, is it not possible to consider their existence on the basis of an individual examination of each applicant and not on the basis of a broad stipulation that does not take account of the individual characteristics of the applicants?’ (ibid., at p. 349).

Indeed, the employer will find it difficult to satisfy the ‘smallest possible harm test’ if he does not have substantial reasons to show why an individual examination will prevent the attainment of the proper purpose that he wishes to achieve (see Re Can. Human Rights Com’n & Greyhound Lines (1987) [14]; Re Air Canada and Carson (1985) [15]; E.E.O.C. v. Wyoming (1983) [11]; E.E.O.C. v. County of Los Angeles (1983) [12]; E.E.O.C. v. County of Allegheny (1983) [13]). This was well expressed by the Supreme Court of Canada, which said:

‘While it is not an absolute requirement that employees be individually tested, the employer may not satisfy the burden of proof of establishing the reasonableness of the requirement if he fails to deal satisfactorily with the question as to why it was not possible to deal with employees on an individual basis by, inter alia, individual testing. If there is a practical alternative to the adoption of a discriminatory rule, this may lead to a determination that the employer did not act reasonably in not adopting it’ (Saskatchewan (Human Rights Comm.) v. Saskatoon [16], at pp. 1313-1314).

Indeed, the State must show in the petition before us why the maximum age test was chosen rather than a less harmful test, namely an individual examination of the capabilities of the various applicants. In this regard, the burden of proof is of importance. The premise is that the burden of proof lies with the applicant who claims that he has been discriminated against by the employer. When the employer stipulates a maximum age, the burden of proof passes to the employer to show that stipulating a maximum age is required by the character and nature of the job (see the Recanat further hearing [1], at p. 351).

The police

10. The Police Regulations stipulate that the age of a candidate for a job shall not exceed thirty-five (r. 1 of the Regulations). They allow the Inspector-General to exempt candidates from this requirement (r. 2 of the Regulations). In practice, in the vast majority of cases the police implement a recruitment policy that does not allow the recruitment of candidates over the age of thirty-five. How do the police justify this policy? The police point out that policemen who serve in the police are responsible for protecting public security and they therefore have many duties in the field of public security. The work involves operational activity that has no restriction on hours and speedy performance of unplanned tasks. There is a broad range of police work. The broad range of tasks includes, inter alia, activity at road blocks, patrols, security, arrests and searches. Sometimes physical force needs to be used when dealing with criminals. All of these require a commitment to a large number of work hours and a heavy work schedule. The police claim that the ability to comply with all of these decreases with age. The police rely in their reply on the research of Dr Yoram Epstein and Mr Yuval Heled, which was carried out within the framework of the Heller Institute of Medical Research (the Sheba Medical Centre at Tel-HaShomer). This research, which the police initiated in 1998, shows a decline in human ability with age. Against this background, the expert opinion concludes that for jobs that require an element of physical activity (such as a patrol policeman), the maximum age restriction of thirty-five is reasonable (p. 12 of the expert opinion).

11. These arguments of the police justify taking the physical ability of the candidate into account when his candidacy is being considered. But they do not justify the stipulation of a maximum age without any individual examination. A distinction should be made between age and aging, which represents a process accompanied by a decrease in certain abilities (Ben-Israel, Equal Opportunities and the Prohibition of Discrimination at Work, supra, at p. 1045). Even if it is clear that there is a general correlation between age and physical abilities, there are certainly candidates over the age of thirty-five who are superior to younger persons both physically and in their ability to deal with the pressure involved in police work. Even the research to which the police refer determines a general correlation between age and aging, but it does not provide an answer to the question why the police should not examine the physical and mental capacity of its candidates on an individual basis.

12. The police claim in this regard that an individual examination for admission into the police would also require an individual examination during the service. It claims that every policeman who is found to be physically unfit will be compelled to leave the service, since every policeman will be judged according to the same physical standard. The police further argue that requiring the policemen to comply constantly with physical tests constitutes an insult to their dignity. These arguments are unacceptable to me. It is possible to have an individual examination for admission into the job without being required to have an individual examination for continuing in it. And even if such an examination is required, I do not see in this any defect that justifies adopting a recruitment policy based on a maximum age. Moreover, the existence of an individual examination involves no insult to the dignity of the policeman. ‘I do not see any insult to the dignity of an employee who is asked to carry out a job in which physical fitness is relevant, if he is asked to undergo individual fitness tests’ (the Recanat further hearing [1], at p. 355). These remarks which I made with regard to air stewards are in my opinion apposite, mutatis mutandis, also to policemen.

13. The argument of the police is that its recruitment policy requires overall considerations relating to the whole service, and these justify refusing an individual examination of the candidates for the job. I cannot accept this approach for three main reasons:

14. First, in the course of the hearing of the petition before us, a fundamental change took place in the recruitment policy of the police. At the moment, the police are undergoing a process of ‘civilianization.’ They intend to recruit civilians for many types of jobs in which there will be no age restriction of the type stipulated in the Police Regulations (see paragraph 2 of the judgment). Even before this, the police adopted a flexible approach when they recruited candidates for service in professional jobs (lawyers, economists, computer personnel, psychologists, forensic science laboratory personnel), which was allowed under r. 2 of the Police Regulations (see paragraph 126 of the respondents’ summations dated 28 February 1999). This position weakens the arguments of the police concerning the importance of uniformity and hierarchy. These considerations do not guide the police with the same force that they guided them in the past. Certainly they are not capable of forming the basis of a wide-ranging policy of refusing to recruit policemen over the age of thirty-five, as stated in the Police Regulations, for all fields of employment in the police.

15. Second, even if we accept the police’s arguments concerning the service as a whole — and on this question there is some doubt — the police must still show a basis for the concern that the number of recruits with good personal qualifications (both physical and in other areas) over the age of thirty-five will be so substantial that it will harm their ability to operate as a whole in a manner that meets its specifications. The police have not done this. No figures have been submitted to us to show that changing over to a method of individual examinations will make it harder for the police to an extent that justifies their policy. Therefore the police’s concern that they will need to change their retirement policy and that their regular operations will be impaired is also vague and unfounded.

16. Third, the police’s claims that their hierarchical structure will be undermined are also vague and have no foundation. A person who is accepted into the ranks of the police is not accepted unconditionally. The question of his employment can be reconsidered every five years (as stated in s. 17 of the Police Ordinance [New Version], 5731-1971). It can be assumed that the police will know how to deal with those older recruits who cannot function properly under the command of younger persons if difficulties of this kind arise. Certainly these claims are insufficient to justify an absolute prohibition preventing anyone over the age of 35 from joining the police.

17. What is the conclusion in the final analysis? My conclusion is that the police’s recruitment policy, as stipulated in the Police Regulations, is discriminatory on the basis of age. The requirement with regard to a maximum age is not required by the character or nature of the job of policeman; it is unreasonable and disproportionate. Instead of a maximum cut-off age, an individual arrangement that is sensitive to the needs of the individual and the requirements of the police should be formulated.

The Prisons Service

18. The arguments that we heard from the Prisons Service justify — like those of the police — taking into account the physical condition of a candidate when his application is being considered. But has the Prisons Service complied with the burden incumbent upon it to show that age is required as a condition for admission and an individual examination is insufficient? In my opinion, the answer is no. First, there is a disparity between the recruitment policy in practice and the recruitment policy stated in the Regulations. This disparity concerns both the maximum age cut-off (thirty-five years in the Commissioner’s order as compared with forty in the Prisons Regulations) and the extent to which the recruitment policy is implemented (general and comprehensive implementation in the Regulations as compared with implementation in certain sectors in the Prisons Service). This disparity in itself shows that in practice the stipulated policy is not followed. Second, unlike the police, the Prisons Service did not present any factual basis that justifies, in its opinion, the said age restriction. No medical survey examining the relationship between the requirements of the job in the Prisons Service and the restriction of age was presented. The Prisons Service raised an argument concerning the period of time required to train a warder as a justification for having an age requirement. But beyond this, we have not heard any argument concerning the length of the training of a warder in the specific-assignment job sector in the Prisons Service that prevents the employment of candidates whose age exceeds forty, or any claim to this effect. Therefore, the Prisons Service did not comply with the burden incumbent upon it to show that the age restriction is required by the character and nature of the job of warder. This restriction too is unreasonable and disproportionate.

Customs and VAT inspectors

19. The employment policy of the customs authorities is that customs inspectors should not be recruited if they are over the age of thirty-five. The customs authorities explained their employment policy by means of the difficult requirements of the job. Here too the respondents did not discharge the burden incumbent on them to show a basis for their recruitment policy in a way that would justify a general age restriction instead of an individual examination of candidates. The claims of the customs authorities that there are requirements of physical and mental fitness are similar in essence to those that we heard from the police, and the reasons for rejecting those are equally valid for the customs authorities. These authorities also have not shown any evidence that can justify their policy.

20. In view of our acceptance of the petitioner’s claims concerning age discrimination, there is no need to consider the additional claims that it raised, including its arguments concerning an infringement of freedom of occupation.

The relief

21. The provisions with regard to the maximum age as a work requirement are discriminatory and therefore void, and we so declare. This declaration will come into effect eight months from today. The purpose of the delay is to allow the respondents to organize themselves in order to comply with the obligation of equality in job admissions that is incumbent upon them.

We are making the order nisi absolute as aforesaid. The respondents will pay the expenses of the petitioner in a total amount of NIS 20,000.

 

 

Vice-President T. Or

I agree.

 

 

Justice E. Mazza

I agree.

 

 

Justice D. Dorner

I agree.

 

 

Justice D. Beinisch

I agree.

 

 

Justice E.E. Levy

I agree.

 

 

Justice M. Cheshin

I agree with the judgment of my colleague, President Barak.

2.    On this occasion the matter before us concerns age discrimination, and at the end of a voyage of consideration and interpretation, we have arrived at the conclusion that we are indeed faced with a case of age discrimination. The provisions of s. 2(a) of the Equal Employment Opportunities Law, 5748-1988, provide and require that in job recruitment an employer shall not discriminate between job applicants on the basis of their age. The provisions of s. 2(c) of the law further tell us what is self-evident, namely that we do not regard discrimination in such a case to exist ‘where it is required by the character or nature of the job or position.’ The cornerstone of this case is therefore the issue of discrimination, or, if we use its other name, an infringement of the principle of equality.

3.    The concept of equality is merely a framework concept, and the framework is filled with content by the fundamental values of society. As was said elsewhere (HCJ 7111/95 Local Government Centre v. Knesset [7], at p. 501): ‘… Equality is not a value in itself; it is a means to an end, where the high priest of justice and the high priestess of fairness hold office.’ See also HCJ 720/82 Elitzur Religious Sports Association, Nahariya Branch v. Nahariya Municipality [8], at p. 20 (per Justice Netanyahu). It has been held for some time — and this is the rule that has accompanied us over the years — that the concept of equality means, in general, ‘substantive’ equality, as opposed to ‘formal’ equality, and on the subject of substantive equality we made the following remarks in Local Government Centre v. The Knesset [7], at p. 502:

‘A close examination will show us, unsurprisingly, that “substantive” equality is merely one of the derivatives of justice and fairness. Justice and fairness have many facets, and one of their facets is equality. It is possible to formulate the principle of equality in many ways that are not identical to one another: equality of opportunities, equality of results, equality in starting point, equality in allocation of resources, equality of needs, etc.. But “substantive equality” in each of these is synonymous — both in theory and in practice — with justice and fairness, as it appears to members of a particular society at a particular time; in other words, equality leads to justice, and the path of equality is the path of fairness.’

See also further in this vein, ibid., as well as in the Recanat original hearing [4], at p. 322:

‘Discrimination between one person and another offends the sense of justice that dwells deep down in our hearts, and the law exercises all of its strength and might to protect whoever has been treated unfairly and whoever has been discriminated against. The rules of equality and the prohibition of discrimination are merely the rules of justice and fairness without which a civilized society cannot live.’

Once we have characterized the concepts of equality and the prohibition of discrimination as concepts ‘without which a civilized society cannot live,’ it is not to be wondered at that we have placed them alongside other supreme concepts that dictate public policy (ibid., at pp. 320 et seq.). But let us remember and observe this: the ideas of equality and the prohibition of discrimination are in and of themselves worthless. However, when joined with fundamental concepts — such as sex, personal status, race, religion, skin colour, nationality, outlook, etc. — they may bring to life or may create operative legal norms that derive from the values of justice and fairness, all of which naturally in a specific context. That is what we said in CA 3798/94 A v. B [9], at p. 182 {307}:

‘Morality and its imperatives are like a lake of pure water, and the law and its imperatives are like water lilies, spread over the surface of the water and drawing life and strength from the water. Morality nourishes the law at the roots and it surrounds the law… Thus we “know” that the question “Have you committed murder and also taken the inheritance” is a “worthy” question; … Thus we also “know” that the question whether a particular question is a “worthy” question, and whether it has an “answer in statute,” is a question — it may be called: the ultimate question — that nourishes itself with the principles of morality that beat within us, principles of morality that are derived from the principles of liberty, justice, equity and peace of Jewish heritage.’

See also CFH 7325/95 Yediot Aharonot Ltd v. Kraus [10], at pp. 72-73.

4.    The concept of reasonableness — or alternatively, the concept of a deviation from the zone of reasonableness — moves through the ranks of legal norms like a scrupulous sergeant-major, anxious to impose order and discipline on the activities of government and administrative authorities. The force that moves him is the force of logic, and objective criteria light up his path. The concept of equality and the prohibition of discrimination is, however, different. This concept, especially in certain contexts, also derives strength from the rational principles of reasonableness, but its essence lies in the ‘sense of justice that dwells deep down in our hearts’ and in the principle of fairness that binds man to man — a principle without which proper human relationships would not be established, nor would society endure for long. These are the deep waters that nourish our decision in this case. That is how I understand our decision.

 

 

Petition granted.

18 Tevet 5764.

12 January 2004.