Combating Discrimination against Arabs in the Israeli Workforce

The Challenge

Discrimination on the basis of nationality contributes to disparities in employment rates, fields of employment, and income levels of Jews and Arabs in Israel. These disparities adversely affect the national economy, erode social solidarity and reinforce the sense of alienation and deprivation among Israel's Arab population.

Israel's Equality of Opportunity in Employment Law (1988) prohibits private and public-sector employers from discriminating against job candidates and employees on various grounds, including nationality. However, the law has rarely been applied in cases of discrimination against Israel's Arab population.

What explains the lack of enforcement? For one, the enforcement mechanism requires the injured party to file a complaint or lawsuit. Yet many victims of discrimination, refrain from setting the process in motion.

Second, while legal action can address specific incidents of outright discrimination, it cannot address the broad spectrum of factors that cause Arabs to be excluded from employment opportunities in Israel, most of which are informal and even unintentional.

As a result, there is a need for a new model to combat nationality-based discrimination and create more equal employment opportunities for Arabs in Israel.

The Solution: Enlisting Employers as Partners

The study's primary conclusion is that the current system, in which the government uses the threat of lawsuits against violators as means of regulating employer behavior, should be replaced with a model in which the government enlists employers as active partners in the effort to change hiring patterns in Israel. Under the new system, the government will work with employers to eliminate obstacles to equality within their own organizations.

The  Means: The Equal Employment Opportunity Commission (EEOC)

Established in 2008, Israel's Equal Employment Opportunity Commission (EEOC),   has great potential for fostering greater equality in the Israeli workplace. Certain flaws in the structure and methods of the Commission, however, impair its ability to function.

Based on a study of similar commissions in Northern Ireland, and Canada, we recommend upgrading the EEOC's status and enhancing its ability to act. Institutional changes in the EEOC should be accompanied by policy changes aimed at shifting employers from passive agents who, at best, refrain from discrimination to active agents who take proactive steps to remove obstacles and ensure equal opportunity.

The 1988 Equality of Opportunity in Employment Law (hereinafter: "the Law") prohibits private and public employers from discriminating against job candidates and employees on the basis of various characteristics, including nationality. Yet, since its enactment more than two decades ago, the Law has rarely been applied in cases of discrimination against the Arab population, enabling this practice to persist unchallenged.

Discrimination on the basis of nationality is one of the contributing factors to the broad disparities between Jews and Arabs in Israel in unemployment rates, fields of employment, and income levels. These disparities adversely affect the national economy, but more importantly, they erode social solidarity and reinforce feelings of alienation and deprivation among the Arab population. This policy paper proposes a new model for combating nationality-based discrimination, seeking to create more equal employment opportunities for Arabs in Israel.

There are two reasons for the inadequate enforcement of the existing Law:

• The enforcement system requires victims to file complaints or lawsuits: Certain technical and psychological obstacles deter many victims of discrimination from initiating enforcement procedures. These obstacles affect victims of all sorts of discrimination, but are manifested most acutely among the Arab population. As enforcement is contingent on victim-initiated action, discrimination is addressed only to the extent to which the Law is invoked by its victims. Under such circumstances, the Law is more effective in handling gender and age-based discrimination and is nearly irrelevant in dealing with bias based on nationality.
• The Law addresses a highly limited aspect of employment-related discrimination: The Law's present enforcement system that involves legal proceedings is capable of coping only with situations in which specific decisions are made that are clearly based on discriminatory premises. However, exclusion of Arabs from employment opportunities is due also—and perhaps primarily—to a broad spectrum of behavioral patterns, most of them informal and even unintentional, such as organizational culture, social networking, and evaluation procedures. These cannot be tackled through litigation. Therefore, the current system addresses only the tip of the discrimination iceberg.

Considering the above factors, nationality-based discrimination must be addressed through a proactive (rather than reactive) model that takes into account the more subtle, structural aspects involved. This study's primary conclusion is that carrying out only external supervision over employer behavior while threatening violators with lawsuits is ineffective. Instead, employers should be recruited as vital partners in the effort to achieve comprehensive change in hiring patterns. Employers should lead an intra-organizational process to eliminate obstacles to equality at their workplaces, under the supervision of the regulatory authorities. The study recommends that traditional enforcement via litigation should be accompanied by the development of a broader set of tools to encourage employer cooperation.

The study points to an institutional actor that has great potential for assimilating this new regulatory approach with regard to discrimination in employment in general and discrimination on the basis of nationality in particular, namely, the Equal Employment Opportunity Commission (EEOC), established as part of the Ministry of Industry, Trade, and Labor in 2008. The EEOC was established to reinforce the civil enforcement system, but it has the capacity to operate in a broader manner, adopting a range of means and methods for active promotion of equality in employment, besides responding to complaints and filing lawsuits. Since its inception, the EEOC, in addition to handling complaints of discrimination and conducting litigation, has been encouraging employers and civil social organizations to cooperate with one another.

The establishment of the Equal Employment Opportunity Commission provides an excellent opportunity to correct some of the flaws of the present system. However, if its purpose and nature are not properly structured, it may ultimately perpetuate the existing flaws. To demonstrate this point, of all the complaints filed with the EEOC annually, 42–48% are complaints related to gender-based discrimination (sex, pregnancy, and parenting), as opposed to nationality-based complaints which constitute only 2–4%. Since its inception the EEOC has been involved in more than thirty law suits, only three of which dealt with nationality-based discrimination.

By assessing the Israeli Commission's structure and powers against EU standards for evaluation of equality-promoting bodies, certain deficiencies in its ability to act according to the new regulatory model become evident. Taking this comparative assessment into account, the study's chief conclusions and recommendations regarding the EEOC are as follows:

1. Independence: At present, the EEOC lacks autonomy because of its institutional subordination to the Minister of Industry, Trade, and Labor and its professional subordination to the Attorney-General. This situation lessens potential complainants' trust in the system, adversely affects the Commission's ability to express its professional opinion freely before the courts and the Knesset, and weakens its power to take action against discrimination in government agencies. Consequently, the study recommends that the EEOC be rendered an independent authority, guaranteeing its right to express its professional opinion—even when it differs from that of the Attorney-General—and reinforcing its power to enforce equality in public service.
2. Personnel: The EEOC staff now consists of nine persons, most of them attorneys who handle complaints and conduct litigation. More positions are required for expansion of crucial Commission activity beyond the legal sphere. Particularly required are staff members responsible for developing ties with employers, as well as consultants, public relations professionals and researchers.
3. Authority: Considering the close correlation between discrimination in the job market and in provision of services, the EEOC's authority should be extended gradually beyond the sphere of employment alone.
4. Proactive Approach to Nationality-Based Discrimination: In its strategic plan, the EEOC defined nationality-based discrimination as one of its three flagship initiatives. At present, however, it deals primarily with complaints received in its capacity as a litigating body. As so few of these complaints are submitted by Arabs, this situation perpetuates under-enforcement. Consequently, the EEOC should take proactive steps to increase awareness among the Arab population regarding options for filing complaints and should apply its investigative authority to identify cases of nationality-based discrimination even if no prior complaint has been filed.

Institutional changes in the EEOC should be accompanied by the implementation of a policy aimed at shifting employers from a passive state of merely refraining from discrimination to proactive efforts aimed at removing the relevant obstacles and ensuring equal opportunities. For over a decade, the State has been legally required to achieve appropriate representation of the Arab population in the civil service by way of affirmative action, but the stipulated statistical goals have systematically not been achieved. Consequently:

• Intensive efforts must be made to meet the appropriate representation goals in civil service. This is a necessary condition and prerequisite for imposing new obligations on private employers. At the same time, the EEOC should encourage private employers to voluntarily take steps to increase representation of Arabs among their employees by increasing awareness about the type of measures that can be taken, accompanied by provision of consultation and training services.
• Subsequently, an active obligation to promote equality should be imposed on private employers connected with the public sector, including government corporations, bidders for government tenders, and government grant recipients. This obligation will be more lenient than the one applied to the State, as it will not define statistical targets or mandate affirmative action. Employers will be obligated to monitor the composition of their workforce in terms of nationality, identify under-representation, assess its causes, and report their findings to the EEOC. Based on their analysis, the employers will be obligated to draft an equality plan—with the EEOC's assistance—to cope with the obstacles uncovered. Equality plans will include measures such as targeted publicizing of available jobs among the Arab population, providing unique training courses for Arab candidates, and instituting the requisite changes in candidate selection and evaluation procedures. Implementation of the equality plans will be monitored by the EEOC, who will enforce the obligations when necessary. To ensure high quality of employer mentoring and enforcement, personnel should be added to the Commission for these specific purposes.

Another important point to be considered is the structural barrier resulting from security clearances and military service requirements. This is a very common barrier that excludes Arab candidates from jobs and workplaces. As transparency is often denied when security concerns are raised, it is difficult to determine whether the requirements are being invoked in a proportional manner and whether they are always justified.

• We recommend establishing cooperation between the EEOC and the Israel Security Agency to increase transparency around this issue, insure that security concerns are invoked only when absolutely necessary, and enable joint action against employers who apply security restrictions without legal foundation.

Attorney Talya Steiner holds an LL.M from Harvard Law School and is a researcher at IDI.

Prof. Mordechai Kremnitzer is Vice President of Research at IDI and is Professor Emeritus at the Faculty of Law of the Hebrew University of Jerusalem.

Full policy paper (Hebrew)

Related by Attorney Talya Steiner:
Combating Discrimination against Arabs in the Israeli Workplace: The Current Enforcement Failure and the Role of the Newly Established EEOC 
Download Article (English)
Originally published in "Palestinians in the Israeli Labor Market," edited by N. Khattab and S. Miaari (Palgrave Macmillan 2013). Reprinted with permission.