An employee contends that another employee at her workplace sexually harassed her and that he, as well as manager of the employer badgered her due to her whistleblowing and demands compensation also from the employer even though the harassment was not committed with his employer’s approval or knowledge. Is there a basis for claims against the employer? What if it is found that there was no sexual harassment at all? Can the employer take steps to avoid liability?
The Israeli Sexual Harassment Prevention Law prohibits not only sexual harassment but also badgering due to a complaint of sexual harassment. In addition to these prohibitions, the law imposes on the employer a duty to deal with complaints about harassments or badgering, as well as the obligation take preventive measures in order to prevent sexual harassment, including an obligation to publish regulations and appoint a supervisor. The question of of whether the obligations of the employer were met is reviewed considering the special circumstances of the workplace. Thus, in a case heard by the National Labor Court in 2021, the Court held that in an environment prone to sexual harassment such as a pub, there is an increased burden on the employer to substantively comply with the provisions of the law and regulations.
In addition to the general sanction for breach of a statutory duty, Israeli law also states that an employer who fails to meet its legal duties will be liable for a civil tort in the event of sexual harassment or badgering due to whistleblowing, also in order to incentivize employers to act proactively to reduce the probability of sexual harassment. In a matter heard before the National Labor Court in 2006, it was found that the City of Jerusalem inadequately handled complaints and is thus required to compensate employees who were subject to sexual harassment. In a case heard in the National Labor Court in 2015, the Court went a big step ahead and held that an employer may be liable for badgering of a whistleblowing employee even if in retrospect it was determined that no sexual harassment took place and even if the employer met its obligations under the law regarding the prevention and handling of a sexual harassment complaint. Badgering by the employer due to the whistleblowing is prohibited by itself and constitutes an independent tort that is not conditional on the accused employee's actions or the employer's compliance with the provisions of the law and regulations regarding prevention and treatment of sexual harassment complaints.
The distinction between employer’s liability for harassment done by an employee and its independent liability for badgering done by the employer was applied also in a holding by Haifa Regional Labor Court of September, 2024, the facts of which are described at the beginning of this article, where, although the Court held that there was no sexual harassment, it also found that the accused employee should compensate for badgering due to the whistleblowing and that the employer is should compensate both for the employee’s badgering due to employer's inadequate treatment of the complaint and for badgering due to the whistleblowing by the employer itself, regardless of the accused employee's actions or the employer's compliance with its obligations under the law.
In conclusion, a breach of the obligation to comply with the provisions of the law applicable to the employer may subject the employer to a civil tort in the event of sexual harassment or badgering due to whistleblowing by its employee, but even in its absence, the employer may be liable for breach of statutory duty or badgering. Therefore, it is important to be escorted by a lawyer knowledgeable in the field, both on an ongoing basis as a preventive measure and certainly from the moment the employer becomes aware of a complaint being filed for sexual harassment and it is vital to deal with any complaint as promptly and efficiently and ensure there is no badgering of the whistleblower.