Affirmative Action in Israel

In recent years, the Israeli legislature has, for almost the first time, explicitly recognized affirmative action as one of the main mechanisms for realizing the principle of equality, which is both an important principle and a basic right in the Israeli legal system. In the law concerning equality for disabled persons (1998), the legislature recognized affirmative action as a basic principle and, in April 2000, in an amendment to the law concerning equal rights for women, affirmative action was included in the section outlining the objectives of the law. For the first time, the legislature specified that it did not regard regulations or measures designed to correct prior or existing discrimination against women, or actions designed to promote their equality, as illegal discrimination. The same was also said, mutatis mutandi, with regard to persons with disabilities. Although these statements provide some insight into this issue -- they certainly offer a determined expression of encouragement for the use of affirmative action -- they do not provide a complete picture of the situation or of the attitude of Israeli law and the Israeli legal system.

The purpose of affirmative action is to establish social equality. Since the French Revolution, most modern constitutions contain declarations on the equality of mankind, which emphasize that equality is the basic value of any democratic regime. The aim of this type of regime is to provide equality before the law and equal protection by law to all the citizens of the state. However, it is important to note that the practical implications of such declarations are not expressed in terms of absolute equality, but rather in terms of relative equality (Cohen 1991, Zamir and Sobel 1999). The law recognizes that differences exist between people, and assumes that absolute equality can be achieved only between equals who are equal in every respect. It is therefore possible to justify the application of an unequal yardstick (formally speaking) to those who are not equal to begin with, in order to achieve practical equality in the end. Affirmative action policies are designed to promote the realization of practical equality by virtue of the fact that they focus on the results of the distribution of social and economic resources, rather than just providing an equal starting position for every person in the competition for these resources.

There are many definitions for the term “affirmative action,” and each one of them emphasizes a different aspect of the concept. One the one hand, it is a means for achieving equitable results through the reallocation of resources. On the other hand, it is a mechanism that compensates for prior discrimination, which it does, one might add, by means of reverse and deliberate discrimination. The abundance of definitions of affirmative action is matched by its many incarnations and methods of realization, and by the many areas of human activity that are affected by it. Affirmative action is often identified with a quota system, that is to say, the allocation of a certain percentage of jobs and positions to members of various groups that are not properly represented in the various employment sectors. However, affirmative action can also be expressed in other, less rigid manners; for example, by means of establishing general milestones for the achievement of equal representation in a professional, academic or other sector for a certain group in the population, and achieving this by trying to increase the relative number of the members of that group in the relevant sector without clinging to a stubborn desire to fill a specific quota. Affirmative action can also be examined in relation to other areas of human activity. In the first place, it is possible to examine affirmative action in relation to the economy, but it can also be examined in relation to education, higher education and politics. In addition, the question of whether it is appropriate to implement affirmative action only in the public sector, or whether it could be implemented in the private sector as well might be examined.

From its inception in the mid-60s in the United States by order of President Johnson, affirmative action has been the source of constant dispute. The debate takes place on a theoretical level regarding the normative justification of the doctrine and on a practical level regarding how it should be implemented: which groups are entitled to it, when it should be imposed, and whether to permit its implementation in the private sector on a voluntary basis without this being considered illegal discrimination. Such a debate is currently taking place in the United States, where the policy was once formulated, but where, almost four decades later, it has more critics than supporters. The same is true of other Western democracies such as Canada, the countries of Europe and Scandinavia, and Australia, where affirmative action has been incorporated into legislation in recent years.

The echoes of the normative debate and the practical incarnations of affirmative action have been absorbed in Israel to a certain extent, but an examination of existing legislation reveals many faults and lacunae which are not redressed by the sparse judicial rulings on the subject. For example, although a few regulations have established the obligation to implement affirmative action, it is not clear from these regulations whether, and under what conditions, the implementation of affirmative action in the private sector should be allowed to take place on a voluntary basis. Sinilarly, the legislature has not yet defined the criteria for deciding which groups should be entitled to affirmative action, nor has it taken a definitive stand on the question of which affirmative action programs to implement and what measures to take to ensure their implementation.

This paper seeks to address these issues based on the experience of countries where affirmative action programs are being implemented, an analysis of existing legislation in those countries and a critique of such legislation. On the basis of the great amount of data that has been collected over the years, some of which will be addressed in this paper, and research regarding groups that are discriminated against in Israeli society, we have chosen to focus on four groups, whose main (but not sole) characteristic is that they have been victims of discrimination for many years: women, Israeli Arabs, people from development towns and disabled persons. This classification also permits the inclusion of certain other groups in Israeli society, such as ‘Oriental’ Jews and new immigrants, many of whom live in development towns. However, it is clear that such a broad classification has its drawbacks. As we shall see, the steps that need to be taken with regard to each group depend on the group’s unique characteristics, including its socio-economic situation, affirmative action measures that have already been implemented on its behalf, the severity of the discrimination that it has endured and the different areas in which improvement is required. Therefore, an overly inclusive definition of a group, such as “people from development towns,” prevents us from considering the specific characteristics of the sub-groups that make up the larger group. However, it also appears that an overly specific definition may create a situation in which new groups constantly come forward, arguing that they too are disadvantaged and claiming their entitlement to affirmative action. Even if their demands turn out to be justified, the need to examine all these demands will overburden the legislature and the systems that have been put in place to implement affirmative action. In any case, the inclusive classification that has been presented is not totally rigid. The relevance of the classification should be examined periodically by means of research that focuses on demographic and other data describing the situation of particular groups in Israeli society. Obviously, such an examination could lead to a different classification that is more in tune with the data available at that time.

It also should be noted that although the ultra-Orthodox community is situated low on the socio-economic ladder, a fact that raises the question of its entitlement to affirmative action, we have refrained from discussing this in the framework of this paper. It appears that any attempt to explain the reasons for the position of the ultra-Orthodox community on the socio-economic ladder, as well as the question whether, in fact, the community is discriminated against, or whether its choice of a segregated lifestyle is the reason for this position, is the subject of bitter political controversy. This is less true with regard to the question of the entitlement to affirmative action of the other groups that are discussed in this paper. We will therefore not attempt to answer the aforementioned question in the framework of this paper.

As mentioned above, affirmative action is related to many areas of human activity. Therefore, after making a basic decision on the issue of whether or not to implement such a policy (for which groups and on what conditions), it will probably be necessary to adapt the policy to those areas. In this paper, we will introduce a general model for the possible future legislation of a law on affirmative action and the creation of the mechanisms to oversee and ensure its implementation. This model is based on the structure of the labor sector, which is the area in which most affirmative action takes place, and from where it spreads to other areas. For the sake of convenience, therefore, we will employ terms taken chiefly from the labor sector and define the various players accordingly (for example, employers and employees), although we do intend to include education in our model and also to adapt it to the realm of politics. We will begin, first of all, by examining affirmative action in the public sector, but we will also examine how it can be implemented in the private sector.

Conclusion

Affirmative action is still in its infancy as far as Israeli law and legislation are concerned. In recent years, although it was implicitly or explicitly recognized as an important mechanism for the realization of practical equality, arrangements to incorporate affirmative action into Israeli legislation are still lacking. In this paper, we have attempted, firstly, to define the normative principle according to which the regulations will be drafted, and then to define the problems that arise from existing legislation and to present solutions and practical recommendations. We have recommended the adoption of the principle of equal representation in different areas: employment in the public sector, education, higher education and politics. For this purpose, we have recommended the adoption of policies for achieving equal representation that are characterized by relatively short timetables and simple objectives. We have also recommended the establishment of control and enforcement mechanisms for these policies:

• The establishment of an affirmative action authority in the Prime Minister’s Office and in the office of the Civil Service Commissioner;
• The appointment of representatives of the disadvantaged groups to government ministries where they will be responsible for public relations;
• The recruitment and training of candidates from the disadvantaged groups for employment in the civil service;
• The establishment of mechanisms to handle complaints relating to discrimination in all the sectors where affirmative action policies are implemented.

In all the areas that we have examined, we have prepared specific recommendations for each group concerning the degree of equal representation, the required skills and the importance and efficiency of affirmative action. We have also recommended the extension of the existing legal arrangements concerning affirmative action for women to the other disadvantaged groups: Section 18(a) of the Government Companies Law, which establishes equal representation for women on the boards of government companies, and Section 15(a) of the Civil Service Law (Appointments), which establishes the obligation of equal representation for women in the Civil Service Commission. The affirmative action policies in this paper were drafted in the spirit of common trends found in Western democracies, and in accordance with the rulings of the European Court of Justice. We therefore support direct affirmative action, but instead of setting quotas for equal representation, we recommend the establishment of simple objectives and short timetables for the implementation of such policies. In addition, we have also examined the option of implementing policies for indirect affirmative action, which have already been implemented in European and Scandinavian countries, mainly on behalf of women. We have pointed out the need for cooperation between central non-governmental institutions and governmental institutions in order for these policies to succeed.

From the normative decision to give priority to the principle of practical equality (although this principle is circumscribed by the right of freedom of the individual in all its aspects), the rule that establishes when the principle of affirmative action should be applied, and to whom it should be applied, is derived. This rule was apparently formulated in the spirit of the reductive trend that was established by the United States Supreme Court in its ruling on Adarand. The Court determined that people who belong to groups regarding which there is statistical evidence that they are discriminated against are entitled to affirmative action. In contrast to this ruling, however, we have also recommended the use of arguments in favor of social diversity to justify the implementation of affirmative action policies. In our view, the restrictions imposed by the aforementioned rule on the application of affirmative action mechanisms are more relevant to the situation in the United States than they are to the Israeli reality. While this rule transformed the nature of affirmative action in the United States, canceling most of the existing affirmative action policies, there are almost no policies of this kind in Israel. Consequently, it is unlikely that the feeling will arise that affirmative action has already run its course here. However, it is definitely worthwhile to study the American experience, which has demonstrated that affirmative action policies that are defined too broadly and that continue for too long are inefficient, arouse hostility and lead to reverse discrimination.

Although we recognize that coercive measures should be used only as a last resort, we have operated under the assumption that because of the importance of the realization of the legal right of equality, the principle of affirmative action should be established by law. We have also pointed out the important role of educational public relations programs in the successful implementation of such a law. This is particularly true with regard to the voluntary nature of the affirmative action policies that we have recommended for legislation. These policies will be implemented as awareness of the concept of affirmative action and commitment to the principle of practical equality increase. In the absence of such awareness, however, it is likely that the desire to initiate such actions will decline. Furthermore, educational programs are also instrumental to the successful implementation of mandatory affirmative action policies, because this success is closely related to the response in society at large to the policies on behalf of the various disadvantaged groups. This response depends on various factors, such as the degree of alienation that these groups stimulate in the dominant group (male ‘European’ Jews), as a result of political disputes involving the dominant group, and the degree of antagonism that they arouse in this group. It is impossible to ignore the fact that nationalist and ethnic rifts affect the level of willingness in the population to implement affirmative action policies on behalf of Israeli Arabs and ‘Oriental’ Jews. Consequently, the social rifts that may lead to conflict must be identified and, when a law on affirmative action is eventually implemented, public relations bodies and databases must be established for the benefit of the wider public and the sectors where the policies will actually be implemented.

Full Policy Paper (Hebrew)