ISRAEL Law and Practice Contributed by: Tal Keret, Shira Lahat, Neta Goshen Brami, Shira Cohen-Mazor and Shirly Mahlab Hefetz, Arnon, Tadmor-Levy
8.2 Anti-Discrimination Discrimination Claims
Dismissal during protected periods Terminations are restricted during specific protected periods, such as pregnancy, maternity and parental leave, the 60 days following the end of such leave, fertility treatments, periods of illness during which the employee is entitled to sick pay, military reserve duty and the period following such duty. It should be noted that each situation specified above has criteria for the application of the restriction on dismissals, for example, seniority at the workplace, duration of reserve duty, absences due to fertility treatments, etc. Therefore, each situation must be examined to determine whether a restriction on dis - missal applies,, according to the personal circum - stances of each employee. Dismissals for improper reasons prohibited by law A dismissal may be deemed unlawful if it was car - ried out for improper reasons prohibited by law, for example, due to an employee’s membership or activ - ity in a labour organisation, for exposing corruption, or for reasons that constitute wrongful discrimination prohibited by law. Legal Consequences and Remedies In cases of wrongful termination, the employer is gen - erally liable for compensation. This may include: • statutory damages under specific laws (eg, the Women’s Employment Law entitles eligible employ - ees to compensation equal to 150% of their salary for the protected period); • non-pecuniary damages for mental distress, as determined by court based on the severity of the violation; and • compensation for proven economic loss, where the employee demonstrates and quantifies actual financial damage. In rare and exceptional cases, the court may grant reinstatement ‒ an enforcement remedy obliging the employer to return the employee to work ‒ where the procedural flaw is so severe that the termination is deemed void. Reinstatement is subject to a prompt request from the employee and the absence of com - pelling reasons against reinstate. It may be granted in addition to financial compensation.
Under Israeli law, employees and job candidates may file discrimination claims in a wide range of employ - ment-related matters. These include recruitment, terms and conditions of employment, promotions, training and professional development, termination of employment, and benefits or payments related to retirement. Grounds for prohibited discrimination claims may be based on alleged discrimination due to one or more of the following characteristics: • sex and gender; • sexual orientation; • marital status; • pregnancy; • fertility treatments; • parenthood; • age; • race, religion, nationality, or ethnic origin; • place of residence; • political or philosophical belief; • military reserve service; • refusal to work on the Sabbath (even if not for reli - gious reasons); and • disability of the employee or of a close family member. Burden of Proof in Discrimination Claims Unlike the general legal principle in civil litigation (“he who asserts must prove”), discrimination cases under labour law are subject to an eased burden of proof in favour of the claimant, including the following. • If the plaintiff proves that their actions or behaviour were not grounds for dismissal or that the condi - tions set by the employer regarding employment, promotion, working conditions, training, and retire - ment payments are met in their case, the burden of proof shifts to the employer to prove that they did not act discriminatory toward the plaintiff in one or more of the above matters. • In addition, if the plaintiff proves that the employer demanded information from them on a subject in which discrimination is prohibited (for example, information about pregnancy planning or fertility
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