"The burden imposed on the worker is a relatively light burden. A combined reading of the provisions of sections 2 and 9 of the Equal Opportunities Law leads to the conclusion that it is sufficient for an employee claiming discrimination because of one of the characteristics of his identity listed in section 2 of the law to prove that he met the conditions and qualifications set by the employer for a particular matter in order to transfer the burden to the employer to prove that the decision made by him in that matter was not based on a prohibited consideration (see Ben-Israel, Equal Opportunities and the Prohibition of Discrimination at Work (vol. 2, 1998) 480).
The circumstances set out in section 9 of the Equal Opportunities Law are only one example of a situation in which the burden of proof in a claim under the Equal Opportunities Law will be transferred to the employer's shoulders, and in this regard I accept the Ombudsman's argument that the burden can be transferred in other circumstances as well. Section 9 of the Equal Opportunities Law does not prescribe, therefore, an exhaustive and exclusive arrangement regarding the transfer of the burden of proof, since the question of whether the employer acted discriminatory is not necessarily related to the employee's compliance with certain conditions or qualifications. Indeed, in view of the difficulty inherent in proving the considerations that underpinned this or that decision made in the employee's case, the burden of proof should be shifted to the employer when the employee was able to present prima facie evidence that the employer acted discriminately towards him. Moreover, against the background of the power and information disparities that characterize the relationship between the employer and the employee, a particularly high threshold should not be set in this regard. Therefore, the question of meeting the test of the existence of prima facie evidence of discrimination will be determined in accordance with all the circumstances of the case, and strict threshold conditions should not be set for this purpose."
- Accordingly, it was ruled in the Kedar case [Labor Appeal (National) 1842-05-14 Jerusalem Municipality - Galit Keidar [Nevo] (December 18, 2016)] that:
"The employee will therefore be able to meet the evidentiary threshold required for the transfer of the burden of proof, even if the conditions of section 9 of the law are not met , if he points – for example and only examples – an explicit policy of the employer based on one of the criteria listed in section 2 of the Equal Opportunities Law; If he proves that the employer's decision actually has a discriminatory outcome; If it presents evidence that the employer treats the employee differently than other employees who do not belong to the same group; If he proves a different attitude towards employees from the group to which the employee belongs compared to the employer's attitude towards employees from other groups; and so on."
- As to the essence of the burden transferred under the provision of section 9 of the Equality Law, it was held that "the burden transferred under the provision of the section is the burden of persuasion and not the burden of bringing evidence. The employer has a duty to convince him that he did not make his decision, taking into account one of the reasons listed in section 2(a) of the Law" [Labor Appeal (National) 16136-05-15 Dizengoff & Co. (Club Representative) - Naomi Moskowitz Skorecki [Nevo] (January 18, 2018)].
See also the analysis of section 9 of the Equality Law and its implementation: