Civil Case (St.) 66274-11-20 Chen Ohana v. Alpha Ambulance Ltd.

Judgment

In July 2020, plaintiff 1 contracted the coronavirus and was required to be evacuated to a state-operated motel for the period during which she was required to be in isolation.  Defendant 1 provided evacuation services by ambulance by virtue of an agreement with the State.  Plaintiff 1 was waiting to be picked up, wearing shorts and a tank top.  When the driver of defendant 1 came to pick her up, he told her that she would not be able to board the evacuation ambulance in view of defendant 2's refusal, due to her "immodest"/"exposed" dress to his liking.  After plaintiff 1 was unable to convince the defendant's driver to allow her to join the ride, she demanded to speak with his manager.  After an exchange between her and the driver's manager, plaintiff 1 was told that if she did not change her clothes, she would have to wait for another bus.

Since the plaintiff did not have clothes to meet the demand placed before her, she was prevented from getting into the ambulance and was forced to return home and wait for another transportation.

In these circumstances, plaintiff 1 petitions to be awarded compensation in the amount of ILS 186,910 for prohibited discrimination, administrative and constitutional tort, sexual harassment and negligence.

The undisputed facts

1. As of the date of the incident, July 2020, Defendant 1 (hereinafter: "the Defendant") operated a transportation system for the evacuation of confirmed COVID-19 patients to motels operated by the Home Front Command (hereinafter: the "Hotel"). The evacuation was carried out by ambulance (hereinafter: "the ambulance"/"vehicle"), in accordance with the defendant's engagement with the state to provide transportation services to verified patients.
2. During the month of July 2020, plaintiff 1 (hereinafter: "the plaintiff") was diagnosed with the coronavirus. In consultation with her family doctor , it was decided to transfer her to stay in a motel until she recovered.
3. On July 21, 2020, the defendant coordinated the evacuation of three COVID-19 patients on the same bus:

• The first patient (woman) - evacuation from Ashdod to a corona motel at the Dan Hotel in Jerusalem;
• The second patient - defendant 2 (hereinafter: "the defendant") - an ultra-Orthodox man from Ashdod to a corona hotel at the Ye'arim Hotel in Jerusalem;
• The third patient - the plaintiff - was evacuated from Ashkelon to a Corona hotel at the Shaarei Yerushalayim Hotel.

4. The plaintiff's eviction corresponded to approximately 6:00 P.M., and she was notified about half an hour earlier. The defendant's ambulance driver (hereinafter: "the driver"/"the defendant's driver") collected the first two patients before arriving to pick up the plaintiff.
5. The plaintiff came down from her house with her suitcase wearing shorts and a tank top. The defendant's driver informed the plaintiff that the defendant objected to her joining the ride because of her "exposed" / "immodest" clothing.  After negotiations between the driver and the plaintiff, and when she was unable to persuade him to put her in the car, the two spoke with the driver's manager (hereinafter: "the manager"/"the defendant's manager"), who decided that if the plaintiff did not agree to change her clothes, then she would be forced to return home and arrange another transportation for her by the Home Front Command.  The driver continued to drive with the defendant and the other passenger who were already in the ambulance, and the plaintiff returned home and arranged another transportation for herself later in the evening.
6. Defendant 1 has a professional liability policy (hereinafter: the "Policy") with a third party (hereinafter: "Ayalon Company").
7. Initially, the lawsuit was filed against the defendant, who claimed in her statement of defense that she had done so due to an ultimatum given to her by the defendant, that she would not accompany the defendant to the trip because of her "immodest" dress. The statement of claim was amended in such a way that the defendant was attached to the statement of claim.

The parties' arguments in summary

8. According to the plaintiff, the defendant's driver made a decision not to put her on the bus, claiming that the defendant refused to do so due to her "exposed" dress. The defendant's manager backed this decision and did not provide any other solution, and even rejected suggestions she made, so that she was forced to return home despite her medical condition.

The plaintiffs petitioned for relief on the basis of a number of grounds:

1. According to the Prohibition of Discrimination in Products, Services and Entry to Places of Entertainment and Public Places, 5761-2000 (hereinafter: the "Prohibition of Discrimination Law") - when the defendant's employees refused to allow the plaintiff to board an ambulance and drive her to a hotel, because she was a woman and because of her dress, they discriminated against her because of her gender. Making the plaintiff's travel conditional on her changing clothes constitutes prohibited discrimination.  The plaintiff petitioned for compensation in the sum of ILS 66,328 under section 5 of the Prohibition of Discrimination Law, which provides for compensation without proof of damage.
2. Administrative and constitutional tort - the defendant is a contracting company with which the state contracted in order to provide essential service in an emergency situation. Therefore, the defendant is obligated to act equally by virtue of the rules of administrative law, as they apply to the state and its organs.  It was argued that where an administrative authority caused damage to an individual, a liability for compensation arose.

• According to the Prevention of Sexual Harassment Law, 5758-1998 (hereinafter: the "Prevention of Sexual Harassment Law"), the ambulance driver and the defendant's reference to the plaintiff 's dress as "exposed" or "immodest" constitutes sexual harassment. The very establishment of dress conditions directed at women who are dressed in a "bare" or "sexual" manner is a derogatory attitude.  The plaintiff petitioned for compensation in the sum of ILS 120,582 under section 6 of the Prevention of Sexual Harassment Law.

1. Negligence under the Torts Ordinance - The defendant and its employees owe an increased duty of care towards the plaintiff.  The defendant was negligent in deviating from the standard of behavior expected of a service provider in general and a medical service provider in particular.  The defendant was even negligent in training its employees, who humiliated the plaintiff and discriminated against her.
2. The plaintiffs also petition for a permanent injunction instructing the defendant to publish a written clarification and to provide training to its employees, that it is forbidden to deny service on the grounds of sex and/or clothing, and that conduct such as the one they adopted towards the plaintiff constitutes discrimination and sexual harassment, which are prohibited by law.
3. There is a dispute between the defendants as to whether the driver and the manager on behalf of the defendant decided not to drive the plaintiff due to the defendant's refusal or whether their decision had nothing to do with him.

The defendant argued that in view of the defendant's refusal to allow the plaintiff to travel with him in the car because of his "exposed" clothing , and since the plaintiff refused to change his clothes, it was not possible to leave the defendant, a confirmed COVID-19 patient, in the public space, and therefore a decision was made that the defendant would continue traveling and the plaintiff would return home and wait for another transportation.