Milestones in Legislation and Judgments

Since its establishment, Israel has aimed to establish total equality between men and women through regulatory and legislative methods. In this article, originally published in Hebrew in IDI's online journal Parliament, Ms. Karin Tamar Schafferman discusses Israel's legislative history regarding gender equality. Schafferman, a research assistant for the IDI website, applauds Israel's regulatory accomplishments but warns that gender inequality still exists in the public and private spheres and concludes with three conditions that must be met in order for Israel to achieve "full and fundamental equality."

Legislation in the Public Realm - The Initial Step

Introduction

The value of equality is central to democracy. It holds that human beings are born with equal worth and equal rights. Equality is a universal principle dictating that human beings must be judged on the basis of their qualifications alone, regardless of their religion, race, nationality, or gender.

There are two approaches to interpreting the right to equality:

1. The formal equality approach, which defines equality as equal treatment for people of identical status.
2. The essential equality approach, which holds that formal equality is insufficient because it does not take into account the fact that people start out in life with different sets of conditions or characteristics. Therefore, existing conditions, no matter how disparate they are, must be equalized for people in different sectors and classes in order to permit their social mobility.

Existing legislation in Israel reflects both of these approaches. Some of it attempts to grant formal equality and anchor it in law, and some of it attempts to grant essential equality, primarily through affirmative action in the economic and social spheres.

Since its inception, the State of Israel has worked towards establishing full equality between men and women through legislation and regulatory actions in the public realm (including laws guaranteeing equality in the workplace and implementation of affirmative action) and the private realm (including regulations concerning women's physical protection and the right to control their own bodies, trafficking in women, and matrimonial law with regard to marriage and divorce procedures). Matrimonial law, it should be recalled, is restricted by status quo political agreements to remain consistent with Jewish religious law (Halakhah), which is not based on gender equality. This area as well, however, despite its highly sensitive nature, is being actively studied by many in an attempt to find solutions, such as the proposed Gavison-Medan Covenant.

Legislation designed to achieve gender equality, which can be generally labeled "feminist legislation," is intended to instill norms that are not yet widely prevalent in Israeli society (but are so in Western cultures), with the hope that these norms will be internalized in the future, eliminating the need for special legislation to guarantee equality between the sexes or to protect women in particular.

The Initial Step

The cornerstone for the equal status of women in Israeli society was set in place in the country's inaugural document—the Declaration of Independence—which stipulates that the State of Israel "will ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex." Likewise, in 1949 the First Knesset declared that "full and complete equality will be granted to women - equality of rights and obligations in political, social, and economic life and in the entire system of law."

Two years later, the Knesset passed the Women's Equal Rights Law 1951, to ensure women's equality in the legal system, "in the spirit of principles stated in the Declaration of Independence establishing the State of Israel." According to this law, each and every woman has an equal right to a dignified existence, which includes equality in employment, basic and higher education, health, housing, environmental quality, and social welfare. The law also refers to a woman's right over her body and her right to protection from violence, sexual harassment, sexual abuse, and human trafficking.

Despite its broad protections, this law is seen to have three major flaws:

• It does not cover legal rights within families, due to the sweeping refusal of the religious parties to include this topic.
• It does not include specific arrangements for ensuring equality with regard to equal pay or social rights.
• Since the law is not a Basic Law, it does not have superior status over other laws.

In an attempt to expand the law and update it to be attuned to current social norms, the Knesset passed a set of amendments in 2000 requiring that affirmative action be employed to ensure equality in areas that include housing, employment, health, and welfare. Other laws, targeted to specific issues, have been passed since then to further promote equality between men and women.

Employment Legislation

The following Basic Laws were designed to ensure gender equality in employment:

The Employment Women Law, 1954, the first to address the issue, was intended primarily to protect the rights of women in their places of work, in part by setting conditions for night shifts, making it illegal for employers to refuse to hire pregnant women, or preventing employers from firing women who take leave for fertility treatments or medically enforced rest during pregnancy. The general legislative direction towards gender equality is noteworthy, particularly in granting equal parental rights to mothers and fathers, both of whom are allowed to take sick-leave, for example, to care for their ailing children at home.

The Equal Opportunity in Employment Law, 1988 was passed with the aim of granting equal opportunity in employment and expanding a range of possibilities to sectors that had previously suffered discrimination. The law outlawed discrimination against employees or job applicants in the following circumstances:

1. Hiring
2. Setting job conditions
3. Advancement
4. Training or professional study
5. Layoffs or severance pay
6. Benefits and retirement compensation

This law clearly attempted to remedy job discrimination in general, not only discrimination against women. A 2004 amendment to the law was aimed at protecting pregnant women against discrimination in employment.

The Equal Pay (Male and Female Employees) Law, 1996 was intended to eliminate the dichotomy in employment that stems from the commonly held, culture-bound notion that professions can be divided into "women's" (education and welfare) and "men's" (business and finance). The dichotomy is also expressed in the gap in salary levels between the two types of professions.

According to Section 2 of this law, "a male and female employee working for the same employer at the same place of work are entitled to equal pay for the same work, for essentially the same work, or for work of equal value." Section 3 defines "work of equal value" as "work that carries the same weight from the point of view of the qualifications, effort, skills, and responsibility demanded for its performance, and from the point of view of the environmental conditions in which it is performed." One argument against this section is that the qualification about work being done for the same employer and at the same place of work does not truly enable equality. Since gender separation usually occurs at the level of distributing those typically "male" or "female" jobs, the law cannot ensure fundamental equality.

The Sexual Harassment Law, 1998 reflects growing public awareness in Israel of the phenomenon of sexual harassment in the workplace. Research conducted in Israel and other countries found that one-third to one-half of all working women have been sexually harassed in the course of their working lives. Israeli legislation banning workplace harassment is considered among the most advanced in the world. Its definition of sexual harassment includes the following: blackmail by way of threats, indecent acts, repeated propositions of a sexual character (even when the person harassed has not rejected these propositions outright), an intimidating or humiliating reference concerning sex/gender, and behavior of a sexual nature that exploits a position of authority in a work relationship.

The law also defines employers' obligations, which include taking reasonable measures to prevent sexual harassment in work relationships; appointing a responsible party to provide information and guidance; distributing a set of regulations based on the principle components of the Sexual Harassment Law; and providing guidelines for the submission and handling of complaints. In addition, the National Labor Court ruled that a female employee who proves that she quit her job after being sexually harassed in the workplace is eligible for severance pay from her employer.

Affirmative Action Legislation

In addition to passing legislation guaranteeing equal salaries and rights for men and women in the workplace, the Knesset also passed an affirmative action law to realize the principle of equality. The underlying assumption was that it is not enough to grant equality to all, since doing so produces equal results only when the different sectors of society are equal in strength. Since this is not the case and inequality still exists, affirmative action is designed to reduce social gaps—at the same time it corrects the injustices of the past - by giving those who have been discriminated against a chance to partake in society's resources.

Since the 1990s, the Israeli legislature has adopted an explicit policy for implementing affirmative action—through legislation and the establishment of administrative mechanisms:

• As part of its efforts to promote "feminist legislation," the 13th Knesset established the Committee for the Advancement of the Status of Women in 1992. The Committee's work, as defined in the Knesset bylaws, was to advance the status of women with the goal of achieving equal representation in education and personal status, preventing discrimination in any area based on gender or sexual tendencies, reducing economic and employment-related gaps, and combating violence against women.
• In 1993, the Knesset amended the Government Companies Law, 1975 to require an "appropriate expression" of representation by men and women on boards of directors of government-owned companies. This amendment (No. 6) charged government ministers with making appointments, where necessary, to achieve this goal immediately. The term "appropriate expression" was interpreted by the Supreme Court in 1994 following a petition by the Israel Women's Network and Naamat to protest government approval of the appointment of three men to the boards of directors of government companies that did not include a single female member. The court's precedent-setting ruling stated that the term "appropriate expression" meant relative representation of both sexes, at percentages to be determined by the particular needs of the company and the number of candidates of both sexes who are qualified for the position in question. While this ruling did not guarantee equal representation of men and women, it clarified that "appropriate expression" was not to be interpreted as "any sort of representation" by women.
• In 1995, the State Service Law (Appointments), 1959 was amended to stipulate that for all employees in government service jobs, at every rank and in every profession, there must be "fair representation" of both men and women. The amendment also allowed the establishment of affirmative action programs. Following recommendations by a committee headed by Prof. Ruth Ben-Israel, which monitored implementation of the amendment, the Department for the Advancement and Integration of Women in the Civil Service was established in order to ensure adherence to the principle of fair representation. The Department's responsibilities include developing a working plan for fair representation of women in the spirit of the Supreme Court judgment, advising persons responsible for the status of women within government ministries and guiding their activities, and handling women's complaints of discrimination and sexual harassment. Persons responsible for the advancement and integration of women in government jobs are charged with raising the awareness of female employees about laws, regulations, and procedures dealing with the status and rights of women.
• The Authority for the Advancement of the Status of Women was established, by law, in the Prime Minister's Office in 1998 to "advance the status of women in Israel and coordinate between governmental and non-governmental bodies acting to promote the status of women." The law granted the Authority the power to monitor the activities of government ministries in areas under their jurisdiction and to require them to operate in accordance with policies approved by the government. In addition, the Authority took on the task of raising public awareness about its activities through the media, the education system, and direct community activities.
• One area in which women are excluded to an extreme degree is the military. Although Israeli women are required, by law, to perform military service, there is no equality between men and women, neither during their term of mandatory service nor as professional officers. In 2000, the Knesset took significant steps to ban gender discrimination in the I.D.F. by passing Amendment 11 ("Equality in Service") to the Military Service Law. The amendment grants full equality to women in fulfilling their military service, with one qualification: the military is permitted to refuse to appoint a woman to a military role if demanded by the nature and characteristics of that particular role. The road to this pioneering legislation was paved by the reservist Alice Miller, who petitioned the Supreme Court in 1994 to order the I.D.F. to permit women to take the entrance exam for the Air Force pilots' course. Following the Court's acceptance of the petition, the I.D.F. opened the course to women and gradually began to consider opening the gates to other military professions that had never accepted women to their ranks. Efforts to achieve gender equality in the military, begun 15 years ago, have translated into a multi-year plan, "On the Basis of Substance, Not Gender," which aims to integrate women into military positions from which they have been excluded for many years.

Summary

Despite the equality on paper between Israeli women and men and the many legislative achievements over the past several decades, actual data indicate that gender inequality still exists, both in the public sphere and the private sphere. Full and fundamental equality can only be achieved if the following additional conditions are met:

• The rights of women in Israel must be anchored in law or made part of the Basic Law, which has superiority over all legislation.
• Social, individual, and economic equality must be guaranteed generally in both the public and private spheres through public support for existing legislation, active enforcement, and new initiatives that ensure the formal and fundamental equality of women.
• Mechanisms and systems must be established to require the elimination of all discrimination against women.

Karin Tamar Schafferman is a Research Assistant for IDI's Website. She is currently an M.A. student at the Department of Political Science at the Hebrew University of Jerusalem, where she also works as a Teacher's Assistant.