We accept the appellants' argument that when relevant data ostensibly paints a picture that indicates discrimination or bias (in our case, gender) on the part of the employer, this constitutes circumstances that transfer the burden of proof to the employer in accordance with section 9 of the Equality Law. Indeed, as the data show, there is a significant, and perhaps even extreme, gap between the number of men and the number of women in department management positions, and a significant gap in the role of unit manager. In our opinion, even if, as the hospital claims, the age and seniority of physicians who fill management positions was less than the potential of physicians for management positions, in view of the extreme gap between physicians and physicians in management positions, giving preference to physicians who have filled management positions has resulted in perpetuating a reality that is tainted by discrimination or at least gender bias (even if it has a historical explanation), and on the face of it, also the determination of a condition that is not relevant to continuing to work as an ordinary physician other than in a managerial position. However, beyond the fact that Prof. Marin noted that Dr. Ashkenazi had a manager's "area of knowledge", it was difficult to conclude from the data submitted whether preference was indeed given to physicians in managerial positions in the continuation of work after retirement age, due to a lack of relevant data, as detailed below. that it was difficult to draw conclusions from the data tables submitted to the court, because on the face of it, data is lacking, such as – what percentage of physicians who held management positions continued to work after retirement age; The number of physicians and the number of physicians who wished to work after retirement age and were refused and the distribution between them, and other relevant data. In view of the conclusion that we have reached, that there was room to transfer the burden of proof to the hospital due to the continued employment of Dr. Ashkenazi, we did not see the need to decide whether it was appropriate to transfer the burden of proof to the hospital also because of the data that arise from the documents attached to Ms. Shapira's affidavit. (The consequences of the lack of clarity regarding the data regarding the hospital's compliance with the burden of proof will be addressed in section 73 below).
- With regard to the hospital's arguments on this issue, to the extent that they have not been answered so far, we will add:
- As to the argument that the question of qualifications is not relevant to our case, but rather the question of the "necessity" of the appellant's work, this argument illustrates why the burden of proof should be transferred from the appellants to the hospital. Due to the information gaps between the employee and the employer, the employee does not have the relevant data, including data on the "necessity" of his work, and as a rule, he has no ability or very partial ability to deal with this claim. Therefore, as explained above, given that the information and data are known to the employer, the hospital should have presented the data proving that Dr. Ashkenazi's work after retirement age and even after he ceased to be a manager was necessary, whereas the appellant's work was not necessary.
- With regard to the argument that "only when the decision is based on a 'protected' attribute is the employer obligated to prove that there was no discrimination", this argument ignores the fact that today, in light of the awareness of the laws of equality and case law, the likelihood that an employer will openly make a decision based on a protected attribute is extremely low, and it can be assumed that to the extent that the decision is made based on an improper consideration, he will act to disguise this consideration [see in this context Sharon Rabin-Margaliot, Three Generations of Employment Discrimination: Achievements and Limitations of the Struggle to Promote Employment Equality, Labor, Society and Law (2016)]. It is not for nothing that it was ruled that "the transfer of the burden in claims involving discrimination is required by the essence of the action that is required to prove the secrets of the heart and thought" [Labor Appeal (National) 30585-09-12 Human Solutions Implementation Company in Tax Appeal - Orit Bussi [Nevo] (August 4, 2013)], since the employee is usually unable to prove the employer's considerations.
- In summary: In light of all of the above, we determine that the burden of proof that the refusal of the appellant's request to continue her employment after she reached retirement age was not tainted by discrimination rests with the hospital.
Has the hospital lifted the burden of proof?
- The Regional Court ruled that even assuming that the hospital has the burden of proving that it did not discriminate against the appellant on sexual grounds by not extending her employment after December 2020, the claim should be dismissed on the basis of the testimony of Prof. Marin, which is accepted by the court, according to which its decision not to extend the appellant's employment beyond retirement age was not tainted by any gender consideration. This testimony is more reliable and reasonable than the appellant's version. Thus, we must accept the testimony of Prof. Marin that to the best of his judgment the appellant's profession was not uncommon, there was no fear of not finding a replacement for the appellant, and there is no demand for the profession in private medicine. It may have been better if the hospital had established a written procedure detailing the considerations that the Director General testified about with regard to his tenure, and in respect of which Ms. Shapira Degani testified regarding the period prior to the appointment of Prof. Marin as Director-General. However, the failure to establish such a procedure does not necessitate the conclusion that the appellant claimed that these are "invented" criteria for the proceeding in her case. In addition, there was no contradiction in Prof. Marin's testimony that at the time of the appellant's retirement, the department was intended to undergo changes in medical needs, and to focus on bone marrow transplants and the use of CART, issues in which the appellant had no experience.
- The Regional Court also ruled that Ms. Shapira's testimony was not contradicted regarding the circumstances in which the hospital contracted with Prof. Rowe as the director of the department and the circumstances that led to Dr. Ashkenazi's continued employment when he reached retirement age. As Prof. Merin testified, the question of whether a profession is in need or distress is not permanent and subject to change. Therefore, although the appellant's claim regarding a "discriminatory result" in the very employment of two male doctors in the hematology department after retirement age is understandable, it does not prove that at the time of Prof. Marin's decision not to extend the appellant's employment beyond retirement age, the issue of gender was a consideration in the decision or tainted it. This conclusion does not change because Dr. Ashkenazi continued to be employed even after he ceased to be the director of the day hospitalization department and continued to be employed as an internist in a day hospital, after his employment beyond retirement age was extended for a long period of time due to his tenure as director.
- The appellants claimed that the hospital did not meet the burden of proof imposed on it. Thus, no explanation was given to justify the continued employment of Dr. Ashkenazi for many years after the retirement age, while the appellant was forced to retire shortly after she reached the age of 67. Even today, Dr. Ashkenazi is employed as a senior specialist at the age of 76, part-time, at the standard that the appellant had, and the hospital did not give any explanation as to why he was not asked to vacate his place to those younger than him, as the appellant was required to do at the age of 67 and a few months; The Regional Court did not give due weight to the errors and contradictions that occurred in Prof. Marin's testimony with regard to the question of the appellant's and Dr. Ashkenazi's expertise and the justifications for his continued employment and termination of the appellant's employment; Contrary to the Regional Court's determination that the Appellant and Dr. Ashkenazi do not belong to the same equality group, they were both employed at the same level – +8 in the doctors' rankings – and Prof. Merin himself compared them when he testified that he asked the hospital staff which of the two should continue to employ; In the absence of an explanation justifying Dr. Ashkenazi's preference, it is not for nothing that the hospital refrained from summoning him and summoning Prof. Rowe to testify, and the Regional Court did not give due weight to this.
- The appellants further argued that the court ignored the fact that gender discrimination is usually covert and not overt, and failed to locate the concealed discrimination, which is clearly substantiated by the totality of the evidence that was submitted. Thus, a clear bias in favor of men in the hospital was proven in the data that emerged from the documents discovered by the hospital as part of document discovery, both in the huge gap between physicians in management positions and in the number of physicians who continued to work after retirement age compared to the number of physicians who continued to work after retirement age. Prof. Marin testified that the policy is to allow managers to continue working after retirement age, and given the relationship between physicians and female physicians who hold managerial positions, this policy creates a clear bias in favor of male physicians in employment after retirement age. It was further argued that there was no room to accept the hospital's argument that the percentage of women who continued to work after retirement age should be compared proportionately with the percentage of women who continued to work after retirement age out of all physicians who reached retirement age, since this comparison "leaves the women in their ghetto and the men in their ghetto"; Moreover. The data for 2019 showed that 60% of the hospital's physicians continued to work after retirement age, and this figure also obligated the hospital to provide an explanation as to why the appellant was obligated to retire from her job, since, contrary to the impression of the court, continuing to work after retirement age is not unusual, as claimed by the hospital.
- The hospital argued that there were no exceptional circumstances that justified intervention in the factual determinations of the Regional Court, which accepted Prof. Merin's testimony regarding the considerations that were at the basis of the decision not to continue the appellant's employment after she reached retirement age, and determined that she was more reliable and reasonable than the appellant's version, and that it was not contradicted; The arguments (some of which are defamatory) against Prof. Merin's testimony should not be accepted.
- The hospital further claimed that it had been proven that Dr. Ashkenazi was the director of a day hospital for the elderly long before the appellant was appointed director of another field and continued with half the standard as a physician in the unit (without a managerial position) regardless of the appellant's standard; Dr. Ashkenazi had the required and important expertise for the hospital; Similarly, Ms. Shapira testified that Dr. Ashkenazi, who was in a managerial position, had no replacement, and there was a need for his continued employment in the management of a day hospital, and the appellant could not fulfill the managerial role of Dr. Ashkenazi; On the other hand, there was no need to find a replacement for the appellant and there was no need for the appellant to continue her work in research and laboratory after she reached retirement age; Moreover. Ashkenazi had many patients, while the appellant had no demand or demand for Sharap treatments at all, and it is not for nothing that the appellant refused the offer to continue in Sharap in the hospital; The relevant question is not the appellant's skills or excellence, but rather the necessity of her job, and whether her expertise brings patients to the hospital as opposed to the capabilities of other doctors, including Dr. Ashkenazi; All the testimonies on behalf of the appellant do not deal with the necessity of her position and the treatment she provided at the hospital, but rather with her professionalism and skills, which are not relevant to the proceeding, and the hospital chose not to challenge these testimonies in order to preserve the appellant's dignity.
- After examining the arguments of the parties and the entire material of the case, we reached the conclusion that the hospital did not meet the burden of proof imposed on it and did not prove that its decision was not tainted by discrimination. In this part of the judgment we will address the claim of discrimination on the basis of sex, and the claim of discrimination on the grounds of age will be addressed after the discussion on the application of the Weinberger
- As explained at length above, the employment of Dr. Ashkenazi as an ordinary physician and not as the director of the hospitalization unit the day after the appellant's retirement shifted the burden of proof to the hospital, and he should have presented reasons or data on the differences between the appellant and Dr. Ashkenazi that justified a different decision regarding their continued employment after retirement age.
- First of all, we must relate to the Regional Court's determination that it accepts Prof. Merin's testimony that his decision not to extend the appellant's employment beyond the extension that was approved for her until the end of 2020 was not tainted by any gender consideration, and that this testimony was reliable and is more probable than the appellant's version. As is well known, in order to formulate a cause of action under the Equality Law, it is not necessary to prove an intention to discriminate [Labor Appeal (National) 1809-05-17 State of Israel - Etti Elashvili [Nevo] (August 15, 2019), paragraph 71 of the judgment and the references therein]. Indeed, Prof. Merin testified emphatically that all of his decisions, including his decision to reject the appellant's request to continue working after she has reached retirement age, are made for practical considerations, and as he put it, "it does not occur to me and there has never been a consideration in my life as to whether a doctor is a man or a woman" (transcript of April 30, 2023, p. 38, paras. 21-22). The Regional Court was impressed by Prof. Marin's credibility in this context, and there is no reason to intervene in this finding. However, the examination of the question of whether the appellant was discriminated against is done according to an objective and not subjective test of the decision-maker, as was ruled in the Naomi Nevo case:
"... A test to check the existence or non-existence of discrimination is objective and not subjective. The motive for creating differences between men and women is not decisive in this matter, and in order to determine the existence of discrimination, the final result must be examined, as it is portrayed in social reality."