With regard to the appellant's claim that many doctors continue to work after retirement age and that there is a prominent majority of men in this group, Ms. Shapira referred to the data regarding the employment of male and female doctors in the hospital in general and after they reached retirement age in particular, which were attached as Appendix A to the affidavit, and claimed that they refute the appellant's claim of discrimination on the basis of sex, also taking into account the fact that "about 50 years ago there were many more doctors than female doctors, And it seems that this is still the case today," and she also testified that the relative rate of female doctors who continue to work in the hospital after retirement age is higher than the number of doctors who continue to work after retirement age.
Prof. Ofer Merin , the hospital's director-general, testified in his affidavit that the considerations in continuing to employ a doctor after retirement age are mainly medical needs as well as the economic feasibility of continuing his work, and there are other considerations; The appellant did not meet the criteria and therefore her continued employment was not approved after she reached retirement age, but only for a period of eight months, at the scope of 30% of the position, in order to enable her to complete her acceptance of the title of professor. As for the hematology department, he testified that prior to the appellant's retirement there was a shortage of profession and therefore Prof. Rowe, who was already after retirement age, was employed as the director of the department. Prof. Rowe retired with the appointment of another department director, and he continues in the Retirement or Volunteer Corps; Dr. Ashkenazi was demoted to a part-time position. His decision to compel the appellant to retire because of her age is not unusual, was made after an examination and after hearing her arguments, and regardless of gender.
The judgment that is the subject of the appeal:
- In its judgment, the Regional Court reviewed the testimonies on behalf of the appellant. The tribunal noted that the appellant's affidavits were not accompanied by any of the many documents that the hospital discovered in the course of the documents discovery proceedings, and that no testimony was submitted on her behalf based on these documents, together with an explanation of what the facts were and what data could be deduced from them. Later, the Regional Court reviewed the testimonies on behalf of the hospital.
- Subsequently, the Regional Court ruled that the claim should be dismissed. Below, we will briefly detail his reasons, and expand when we discuss the parties' arguments.
- Transfer of the burden of proof to the hospital: First, it was determined that the appellant's arguments regarding the reversal of the burden of proof will be examined in relation to section 9(a)(1) of the Equal Opportunities in Employment Law, and will be retried – 1988 (hereinafter – the Equality Law), and not according to section 9(a)(2) of the Equality Law, which deals with dismissal from work. This is because the termination of an employment relationship following the employee's attainment of retirement age, in accordance with Section 4 of the Retirement Age Law, 5764-2004 (hereinafter: the Retirement Age Law), which authorizes the employer to terminate the employee's employment upon reaching retirement age, is not a "dismissal", but rather part of the employee's working conditions, since the employer is authorized to retire an employee even if his behavior or actions did not constitute a reason for termination of employment.
- The Regional Court further ruled that the Appellant did not establish the conditions for reversing the burden of proof. The appellant has the primary burden of proving that the conditions in section 9(a)(1) of the Equality Law are met, i.e., equality in skills, the result of which is the transfer of the burden of proof to the employer. The appellant's claim that her skills are no less than those of Dr. Ashkenazi, who continued to work at the hospital after retirement age, is "an argument of expertise. The court does not have the tools to examine it without expert testimony. The plaintiff did not bring expert testimony." In addition, the testimonies on behalf of the hospital regarding the lack of a basis for a comparison between the appellant and Dr. Ashkenazi in the first place were not contradicted, taking into account the fact that Dr. Ashkenazi was the director of a day hospital and the appellant was a clinician and researcher, and that this was in fact a different professional essence and therefore a different "equality group".
- Moreover, even assuming that the hospital has the burden of proving that it did not discriminate against the appellant on the basis of sex in 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 after 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. 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 the continued employment of Dr. Ashkenazi when he reached retirement age. Therefore, although the appellant's claim regarding a "discriminatory result" in the very employment of two 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 gender issue was a consideration in the decision or tarnished it.
- With regard to the appellant's argument regarding the general consequential level, the data presented by Ms. Degani Shapira in her affidavit substantiate the hospital's claim that "the relative number of women who continue to work for the defendant after retirement age is higher than the number of men who continue." Historically, the hospital, like other hospitals and the economy as a whole, has suffered from gender inequality, the result of which is that in absolute numbers there is a male majority in important segments such as the number of managers. However, with regard to the appellant's claim of discrimination, the most significant figure is the relative figure, according to which the percentage of female retirees is lower than the percentage of retirees in relation to male and female doctors, respectively.
- On the basis of all of the above, the appellant did not prove that she was discriminated against because of her gender in the hospital's decision to force her retirement at the age of sixty-seven and eight months.
- As to the appellant's claim that she was discriminated against on the basis of age, this argument cannot stand, even if the court accepts the appellant's testimony regarding statements made by Prof. Marin and Prof. Rowe regarding the need to allow the young doctors to advance. This is in view of the provision of section 4 of the Retirement Age Law, as well as the recognition in case law of the distribution of intergenerational opportunities as a proper purpose for the termination of the employment relationship of someone who has reached retirement age.
Summary of the arguments of the parties in the appeal:
- The appellants argued that the Regional Court erred in its determination regarding the failure to transfer the burden of proof to the hospital; With regard to the Regional Court's determination that it was proven that the appellant's forced retirement was not tainted by discrimination, the appellants 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. In any event, the hospital did not lift the burden of sight imposed on it; In addition, the Regional Court ignored the fact that the data that emerges from the documents discovered by the hospital clearly indicate consequential discrimination. B did not fulfill his duty in accordance with the Weinberger Rule [Labor Appeal (National) 209-10 Libby Weinberger - Bar Ilan University [Nevo] (December 6, 2021)], i.e., the duty to consider in good faith and in a matter-of-fact manner the employee's continued employment after retirement age. Indeed, the appellant does not have a vested right to continue working after retirement age, but the appellant has a right to equality in working conditions, including the right to an equal opportunity to continue working after retirement age; The appellant was discriminated against because of her gender and age, and she was not given an equal opportunity to continue working after retirement age, in contrast to Dr. Ashkenazi, who worked nine years after reaching retirement age; As a result, the appellant has suffered significant pecuniary damage; Beyond the pecuniary damage, the discrimination against the appellant is severe and outrageous, and it also contains an element of humiliation and violation of the appellant's human dignity.
- The hospital argued that the appellants failed to prove their claims – factual and legal; there are no exceptional circumstances that justify intervention in the factual determinations of the Regional Court, which accepted Prof. Marin's testimony regarding the considerations underlying the decision not to continue the appellant's employment; while in the statement of claim it was claimed that the appellant was discriminated against on the grounds of sex and age, and that the hospital discriminated against "throughout the hospital", After all, since the claim of "consequential discrimination" has not been proven, the appeal focuses on the fact that the appellant's colleague, Dr. Ashkenazi, continued his work.
- The hospital further argued that the conditions for reversing the burden of proof had not been established; the question of the appellant's qualifications is irrelevant, because the relevant question is the question of the necessity of the appellant's role after she has reached retirement age, since there is no connection between qualifications and retirement that is required from the employee's reaching retirement age, and the question of necessity is not listed in sections 9(a)(1) and 9(a)(2) of the Equal Opportunities at Work Law; with regard to the continued employment of Dr. Ashkenazi after retirement age, this argument is an expansion of the (prohibited) front; was not proven, and was raised in the summaries in light of the failure to prove the claim of consequential discrimination; The decision regarding the termination of the appellant's employment was made after Prof. Marin consulted with the specific professionals related to the appellant's work, and in the view that there is no medical need for her services after she has reached retirement age; Notwithstanding the aforesaid, the hospital approved the extension of the appellant's period of employment on a part-time basis in order for her to complete the procedures for obtaining the degree of professor; This was after meetings were held between the appellant and Prof. Marin, in which she was heard and allowed to present her arguments.
The position of the Equal Employment Opportunity Commission:
- In the decision of President (retired) Wirit Livneh, the Equal Employment Opportunity Commission (hereinafter – the Commission) was asked to announce whether it wishes to voice its position in the appeal.
- In its position, the Ombudsman argued that there were errors in the judgment of the Regional Court both in analyzing the issue of the transfer of the burden of proof under the Equality Law, since the appellant met the burden imposed on it in order to transfer the burden of proof to the shoulders of the hospital, both with regard to the claim of consequential discrimination and with regard to the continued employment of Dr. Ashkenazi. As to the manner in which the appellant's request to continue working after retirement age was examined, the Ombudsman argued that the hospital's conduct was inconsistent with the rules established in this regard in the Weinberger case and in the Gavish case [High Court of Justice 9134/12 Moshe Gavish v. Knesset [Nevo] (April 21, 2016)].
Discussion and Decision:
- After examining the arguments of the parties and the Commission before us in writing and orally and all the material of the case, we have reached the conclusion that the appeal should be accepted. Thus, it must be determined that the burden of proof that the hospital's decision was not tainted by discrimination on the grounds of sex and age was transferred to the hospital; the hospital did not meet the burden of proof imposed on it and did not prove that its decision on the appellant's forced retirement was not tainted by improper discrimination; there were flaws in the process of making the decision to force the appellant to retire. and the hospital's conduct is inconsistent with what is required of it in accordance with the Weinberger rule. As to the remedies to which the appellant is entitled, in the hearing before us, the appellant did not insist on the enforcement remedy, but only on monetary relief, and as stated in the lawsuit, compensation for pecuniary damage and compensation for non-pecuniary damage were claimed. The Regional Court did not discuss the matter of the remedies and the questions involved therein, and the proceeding was returned to the Regional Court to discuss and decide on the monetary remedies to which the Appellant is entitled due to the discrimination, the violation of her right to equality and the manner in which the Hospital conducted itself in the implementation of the Weinberger Rule.
- And this will be the order of the discussion: We will begin with a concise review of the normative basis for deciding in this proceeding – the issue of termination of the employee's employment due to his or her reaching retirement age, the employer's obligation to consider his continued employment in accordance with the Weinberger Rule , and the applicability of the Equality Law to this decision. Later on, we will discuss the questions of whether the burden of proof was transferred to the hospital; whether the hospital has lifted the burden of proof imposed on it; and whether the hospital acted lawfully in accordance with the Weinberger
- Before we address the issues as they are, we will address the procedural argument raised by the hospital, according to which the focus of the appellants' claim in the Regional Court was a claim of lateral discrimination in the hospital, and that Dr. Ashkenazi's continued employment after he reached retirement age was not at the forefront of the hearing in the Regional Court, but was raised only in the framework of Prof. Marin's cross-examination. On the other hand, the appeal focuses on the continued employment of Dr. Ashkenazi after retirement age, and this constitutes an expansion of a prohibited front.
We are unable to accept this argument. A perusal of the pleadings and the appellant's affidavit in the proceedings in the Regional Court shows that from the beginning of the proceeding, the main argument of the appellant was that while she was required to retire in order to "make room" for doctors younger than her, the hospital employed both the director of the department, Prof. Rowe, and Dr. Ashkenazi (referred to in the statement of claim as a "senior doctor") many years after they reached retirement age, and this fact testifies to clear discrimination on the part of the appellant (paragraphs 3, 4 and 9 of the application for interim relief; Sections 5, 13, 15, 16 and 47 of the statement of claim; Appellant's affidavit, paragraph 9).