(1) Acceptance to work, including admission tests;
(2) Working conditions;
(3) Promotion at work;
(4) professional training or training;
(5) Severance or severance pay;
(6) Benefits and payments given to the employee in connection with retirement from work.
(b) For the purposes of subsection (a), the determination of conditions that are not of the nature of the matter is also regarded as discrimination.
(c) Discrimination under this section shall not be regarded as an action or omission necessitated by the substantive requirements of the position or of the position.
(d) The provisions of this section shall apply, with the necessary changes, to a person who was previously a person with a disability, to a person who is considered a person with a disability, and to the family members of a person with a disability who care for him.
'Discrimination' – including failure to make the necessary adjustments due to the special needs of a person with a disability that would enable his employment;
'Accommodation', 'Accommodation' – including adaptation of the workplace, its equipment, job requirements, working hours, job acceptance tests, training and training, work procedures, all without imposing too heavy a burden on the employer;
'Too heavy a burden' – an unreasonable burden in the circumstances of the case, taking into account, inter alia, the cost and nature of the adjustment, the size and structure of the business, the scope of the activity, the number of employees, the composition of the manpower, and the existence of external or state sources of funding for the adjustment."
- Section 5 of the Equality Law defines a person with a disability in this language:
"A person with a physical, mental or intellectual impairment, including cognitive, permanent or temporary, due to which his functioning is substantially limited in one or more of the main areas of life;"
- In the matter of Labor Appeal (National) 34784-10-16 Bromine Compounds in a Tax Appeal - Borochov, [published in Nevo], October 15, 2018 (hereinafter: the Borchov case), the definition of the law was expanded and it was determined as follows:
"The purpose of the law justifies a flexible and broad interpretation of the definition of a 'person with a disability' within the meaning of section 5 of the law. Accordingly, there is no need for a "severe" disability; There is no relevance to the determination or non-determination of the percentage of disability by virtue of the National Insurance Law; there is no need to meet the strict conditions set forth in the law and the extension order for the purpose of appropriate representation quotas; there is no necessary requirement to present a medical certificate from an occupational physician or another explicitly stating that the person is a "person with a disability" (although medical documents will usually be required for the purpose of proving the disability and its consequences); and it is sufficient that the disability affects one main area of life, That there doesn't have to be employment."
- Section 13 of the Equality Law applies the provision of Section 9(a) of the Equality Law, which shifts the burden of proof to the employer and accordingly, he must prove that he did not dismiss an employee because of his disability. At this stage, and in order to pass the burden of proof, the employee must prove prima facie that his conduct or actions did not constitute a reason for his dismissal. To the extent that he has met this burden, the burden shifts to the employer to prove that he did not use prohibited discrimination in dismissing the employee.
- In Labor Appeal (National) 7129-10-11 Hajaj vs. Tnuva Cooperative Center for Marketing Agricultural Produce Ltd., [published in Nevo], April 7, 2014 (hereinafter: "the Hajag case"), the National Court ruled as to the transfer of the burden, as follows:
"In circumstances in which the grievance against the employee is 'tainted' even with problems stemming from his disability, the employee is protected by the Equality Law, and the burden shifts to the employer to prove, inter alia, that he did not violate the Equality Law, including that it is not possible to make an adjustment or that the burden of making it is too heavy. In the case of Sharona Arbiv, my colleague Justice Rosenfeld ruled that 'the very presence of an improper consideration in the decision-making process is sufficient to taint it as a discriminatory decision. This approach imposes liability on the decision-maker in any case in which it has been proven that he took into account an improper consideration.'"
- Say from now on. To the extent that the employee has shown that there was no defect in his actions that justifies his dismissal, the employer will have to prove that the dismissal was not carried out in violation of the Equality Law. In addition, where it has been proven that the dismissal decision is based or relies in part on an improper or improper consideration. A consideration related to the employee's disability can "taint" the decision and lead to its disqualification. As a result, the result will be that these are unlawful dismissals for which an employee is entitled to compensation.
- In order to refute the claim of discrimination raised by the employee, the employer must show that this is a relevant decision based on real needs in the workplace, and must also show that it has taken into account the employee's disability and made sincere and genuine efforts to transfer him to another suitable position.
- For our purposes, the words that were determined on this issue in the Borchov case, where the court held that:
"An employer to whom the burden of persuasion has been transferred can only defend the claim of discrimination if he proves (by presenting a recovery plan, reductions, etc.) that the decision to dismiss stemmed from his real needs and without connection to the employee, and in addition and cumulatively – he will also prove that he "took into account the employee's disability and made active, honest and honest efforts to locate another suitable position for him, and if necessary, make the necessary adjustment for this purpose."