On March 4, 2022, the Tel Aviv Regional Labor Court ruled that an employer who denied a temporary employee permission to telework over dissatisfaction with her job performance and the short duration of her employment did not commit prohibited discrimination. The court rejected the employee’s claim that telework constituted a right or part of her working conditions, affirming that authorization of telework was part of the employer’s managerial prerogative. (Labor Claim (Reg. TA) 51290-09-20 Mor Itshak v. Middle East Pipes 2001 Industries LTD (Mar. 4, 2022), Nevo Legal Database (in Hebrew, by subscription).
Circumstances of the Case
The plaintiff was hired by the respondent to substitute for another employee who was on maternity leave. The plaintiff argued that the respondent discriminated against her by denying her request for telework during the early phases of the coronavirus pandemic, although the permanent employee she was temporarily replacing had been authorized to telework. This disparate treatment, she alleged, constituted a violation of the Equal Opportunities in Employment Law, 5748-1988, as amended (Equal Opportunities Law). According to the respondent, however, the plaintiff failed in her job and, consequently, the respondent had to call the permanent employee back to work before the end of her maternity leave to assist in the work of the department.
The Equal Opportunities Law prohibits discriminating against an employee at work or a job seeker on such grounds as gender, sexual orientation, personal status, race, and religion. The law clarifies that disparate treatment necessitated by the nature of the job should not in itself be considered unlawful discrimination. (Equal Opportunities Law § 2.) The burden of proof is on the employer to prove that they have not violated the prohibition if the claimant has proved compliance with conditions or qualifications required by the employer for performing the job. (§ 9.)
The court held that “the principle of equality is based on the principle of relevance.” Therefore, a person who claims discrimination must indicate the existence of a different relationship or distinction exercised by the employer toward the claimant “as compared with another employee who belongs to the same group.”
Previous decisions by the National Labor Court have not prohibited employers in Israel from setting different working conditions for different employees, even if they perform the same work. Disparate treatment would be considered discriminatory and prohibited only if it was based on improper considerations, such as treating employees not as individuals but as belonging to a group defined by race, sex, national origin, political opinion, etc. The grounds for proving discrimination under section 2 of the Equal Opportunities Law, the regional court concluded, was not limited to those listed in the section, as the list “has been expanded over the years against the background of the development of social norms in Israel.”Considering the circumstances of the case, the regional court rejected the plaintiff’s discrimination claim and held that the respondent was justified in treating the plaintiff differently from the permanent employee because of the respondent’s dissatisfaction with the plaintiff’s job performance and the relatively short period of her employment.