Goren & The Women's Lobby of Israel v. Home Center (Do It Yourself) Ltd. & The National Labor Court in Jerusalem

The petitioner received a salary a little over half that of a male employee with the same responsibilities and duties. She sued respondent under the Equal Pay Act (the “EPA”) and Equal Job Opportunities Act (the “EJOA”) and won because the respondent could not justify the discrepancy, though the district labor court also found that the respondent did not have a policy of paying female employees less than male employees. The lower court also determined that the petitioner had a legitimate claim under the EJOA because the respondent violated the EPA. For each violation, the labor court awarded her the difference between her salary and that of her male colleague (NIS 6,944). Each party appealed the damages to the National Labor Court, which held in a split decision that the right to contract trumps the right to equal pay and that an award under the EPA does not necessarily trigger a claim under the EJOA. The majority held that the purpose of the EPA is to compensate an employee for discrepancies in pay between herself and a male colleague who performs the same task in the same workplace while the purpose of the EJOA is to combat discrimination; the former does not require any evidence of discrimination while the latter does, although that discrimination need not be intentional. The High Court of Justice rejected the appellate court’s argument that the right to contract trumps the right to equal pay, calling it “a fig leaf to cover up real discrimination,” but agreed that the EPA and EJOA have different elements, purposes, burdens of proof, and remedies. The High Court held that an employee has the burden of demonstrating discrimination, but that burden shifts to the employer under certain circumstances, like a pay discrepancy. A larger pay discrepancy means a more significant burden for the employer. In this case, the employer had the burden to prove that the petitioner’s lower salary was solely based on her request for a lower salary and not her gender. The High Court held that an employer cannot justify a 35% difference in pay solely based on an employee’s salary request when hired. However, due to her delay in filing, the Court voided the respondents’ damages obligation under the EJOA.