The bill published herein is intended to deal with these phenomena and to clarify that this is prohibited discrimination.
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It is proposed to amend section 3 of the law, which deals with the prohibition of discrimination, and to determine that even the determination of irrelevant conditions is discrimination prohibited by the law [...]." (Emphasis added - A.S.)
- These explanatory notes speak for themselves and support the conclusion that the entire purpose of section 3(c1) of the law is to add clarification that deals with attempts to disguise prohibited discrimination. The purpose of the section is to alleviate the burden of proof that applies to plaintiffs who are among the groups listed in section 3(a) of the law - the burden of proving that they were discriminated against within the meaning of section 3(a). In these explanatory notes, there is no mention or indication of expanding the list of grounds for which a lawsuit may be filed complaining of prohibited discrimination.
- It should also be noted that in parallel with the enactment of section 3(c1) of the law, an amendment to section 6 of the law was also enacted, which is worded as follows:
"6. The plaintiff proved in a civil proceeding under this law one of the following, a presumption that the defendant acted in contravention of the provisions of section 3, as long as he did not prove otherwise:
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(4) The defendant delayed the provision of a public product or service, entry into a public place or the provision of a service in a public place, to members of a group characterized by the grounds for discrimination listed in section 3, and did not, as aforesaid, detain, in those circumstances, persons who are not members of that group." (Emphasis added - A.S.)
The factual presumption set forth in the section explicitly relates to the list of section 3(a) and does not even hint at the possibility that discrimination may also be carried out against groups that are not characterized on the basis of one of the grounds in the list. If the legislature had wished to determine that this list would henceforth be an open list, it can be assumed that the wording of section 6(4) would have been changed accordingly.
- It is not superfluous to note that the Prohibition of Discrimination Law is intended to strike a balance between the principle of equality, as an important value in our society, and the economic freedom of private business owners who appeal to the general public. The principle of equality is not the be-all and end-all, and the economic freedom of the country's residents is also not the be-all and end-all. These are important values that must be balanced. The balance that the legislature sought to establish therefore requires great caution in extending the prohibitions of discrimination beyond those expressly recognized in the law (see and compare: Civil Appeals Authority 10011/17 Maital Engineering and Services in Tax Appeal v. Salman, paragraphs 2-10 of my judgment (August 19, 2019); and Civil Appeals Authority 9247/20 Russo v. Segev Express Rishon LeZion Ltd., paragraphs 21-24 of my decision (January 24, 2021)). This is because "the value of equality in private law is not a fundamental value. On the contrary, in the private sphere liberty is the rule, and the principle of equality is the exception to it, an exception that is usually applied when there is a significant gap between the parties or when one of the parties has quasi-public status [...]" (See: Civil Appeal Authority 8821/09 Prozansky v. Good Night Productions Ltd., paragraph 19 of the judgment of Judge Danziger (November 16, 2011)). An excessively expansive interpretation, which creates out of thin air prohibitions of discrimination and grounds that are not listed in section 3(a) of the Law, is liable to harm the freedom of contract and the business autonomy of the individual, and thereby violate the balance that the legislature sought to achieve. This consideration also supports the interpretation that the list of grounds listed in section 3(a) of the Law is a closed list. If the legislature wishes to expand this list, it is presumed that it will speak in a clear voice and in clear words.
- From this arises the obvious conclusion in relation to the case before us. The preference of the hotel employee's associates does not constitute prohibited discrimination that falls within the scope of section 3(a) of the Prohibition of Discrimination Law. This preference does not fall within the scope of one of the grounds listed in the closed list of section 3(a), and the provisions of section 3(c1) do not expand the list. As explained by me, what is stated in section 3(c1) of the law only describes one of the methods of discrimination that are prohibited in section 3(a). Therefore, I am of the opinion that the District Court did well to accept the Respondent's appeal and to determine that her conduct - insofar as it may be morally and morally flawed - does not amount to prohibited discrimination under the law.
- Finally - in light of all of the above, I would suggest to my colleagues that the appeal be dismissed and that in light of the totality of the circumstances, no order for expenses was made. Each party will bear its own expenses. I also reiterate the District Court's recommendation that the Respondent waive the return of the monies it paid to the Applicant following the Small Claims Court's ruling.
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