Does the plaintiff have a right to compensation?
- According to the plaintiffs, making a demand against a woman to correct unwritten and arbitrary modesty constitutes discrimination. Therefore, the existence of a presumption in section 3 of the Prohibition of Discrimination Law was sufficient to transfer the burden to the defendant. Beyond necessity, the defendant's driver admitted that the demand for a "modest" dress standard was directed only at the plaintiff, claiming that the defendant, an ultra-Orthodox man, demanded it as a condition for her joining the bus.
- Section 2 of the Prohibition of Discrimination Law defines what service is:
"'Public Service' - transportation, communications, energy, educational, cultural, entertainment, tourism and financial services intended for public use;
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"Transportation Services" - buses, trains, air transportation, ships, shuttle services and car rentals."
- Section 3 of the Prohibition of Discrimination Law states as follows:
" (a) A person engaged in the provision of a public product or service or in the operation of a public place shall not discriminate in the provision of the public product or service, in the provision of entry to a public place or in the provision of a service in a public place, on account of race, religion or religious group, nationality, country of origin, sex, sexual orientation, outlook, party affiliation, age, personal status, parenthood, or wearing the uniform of the security and rescue forces or wearing their symbols.
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- For the purposes of this Law, one is whether the occupation is done for profit or not, and whether or not payment is collected for the provision of the public product or service, the operation of the public place, the provision of entry to the public place or the provision of the service in the public place.
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(c1) For the purposes of this section, the determination of conditions that are not of the nature of the matter is also regarded as discrimination."
- The defendant argued that in Civil Appeal 9128/17 Sanz Medical Center, Laniado Hospital v. Anonymous [Nevo] (July 18, 2022) (hereinafter: the "Laniado case") it was determined that the Prohibition of Discrimination Law does not apply to medical services. Therefore, the defendant sought to reject the plaintiff's claim that it was a transportation company and not a medical service.
According to the defendant, the state made a decision to evacuate the patients by ambulance and not by taxi or bus, and therefore this is a medical service. According to the defendant, the evacuation was carried out by ambulance in order to provide a medical response if necessary and to ensure a quick evacuation. This is a medical transportation and not a regular transportation.
- According to the plaintiffs, the defendant did not present any evidence that contradicted its definition as a "transportation company" (Appendix 1 to the plaintiff's affidavit). Therefore, the plaintiffs sought to determine that the ambulance should be regarded as a "public place", and that the defendant had set "conditions that were not of the essence" in her demand that the plaintiff be substituted for "modest" clothes.
The plaintiff sought to ignore the defendant's claims regarding ambulance evacuation procedures, congestion during the corona period, etc., since no instructions and data were presented on the subject. It is presumed that the defendant did not present the instructions regarding the evacuation of patients or its engagement agreement with the state, because this would have proved that it had violated them.
- In the dispute between the parties, my opinion is the same as that of the plaintiffs. However, this is not the usual service provided by an ambulance for the purpose of evacuation for medical treatment. It is also clear that the evacuation of confirmed patients is not done by transportation of another type, but by ambulance due to the possibility of providing a medical response if necessary, and on the assumption that the evacuation procedures will also be carried out by medically trained staff. However, in essence, we are dealing with transportation services and no other evidence was presented that the defendant entered into a service that was defined differently from the one claimed by the plaintiff. The defendant's driver also admitted that it was a matter of transportation services and not a medical need, and therefore the plaintiffs' position that the service provided by the defendant fell within the scope of the Prohibition of Discrimination Law should be accepted.
- In the Laniado case, it was held that the Prohibition of Discrimination Law does not apply when it comes to a hospital's policy, which is rooted in religious-halachic reasons, which prevents receiving medical treatment, except in accordance with the provisions of the Patient's Rights Law, 5756-1996.
I do not believe that the Laniado case can assist the defendant in her arguments in this case, since the decision to deny the plaintiff the transportation services did not stem from a policy relating to the manner in which the defendant operated the transportation services, but rather a demand that the plaintiff change her clothes to "modest" clothes, because her employees believed that this was what the defendant demanded.