It is worth mentioning that in the WhatsApp correspondence in which the sequence of events that led to the defendant's words was discussed, the plaintiff says, "I am a big girl. I asked the questions when I quite understood what the answers I was going to hear. It did surprise me in general, because it was not the feeling you gave me all along, but when I asked, I was already sure of the style of the answer. So you are not to blame for anything. I asked a question and got an answer. Look at it this way."
- The court goes on to rule that "even if we assume, as it emerges from the aforesaid, that the plaintiff contributed to the fact that the conversation of April 7,2021 and/or the later conversations developed as they did, by her very choice to ask questions that should be avoided, this does not negate the liability of the defendant, who due to the subordinate relations that exist between the parties, could have been expected to refrain from any conversation of this kind. Even if it is not on his own initiative, especially when he knows that the plaintiff is in a weakened position, as a candidate for dismissal, a status that may lead her to think that she must use her sexuality in order to protect her workplace."
- In light of all of the above, the court ruled that "we accept the clarifier's determination that a pattern of behavior of subordinating an employee to a discourse of a clearly sexual nature (sharing experiences, questions about sexual matters) as part and within the framework of an employment relationship is in any case behavior that may create an inappropriate work environment, which may even amount to environmental sexual harassment. To make the situation lighter in the WhatsApp correspondence, belated between the parties, when her ambition was to keep her job, whether through cooperation and even by encouraging sexual discourse, or by dismissive of the seriousness of the act (and on the other hand, with an implicit threat that she had a recording of the conversation)." .
- Against the background of all of the above, given that "the period in which the plaintiff experienced sexual harassment was relatively short, she began with a conversation on April 7,2021, and ended on April 19,2021, after the plaintiff informed the defendant that she had a recording of things he said to her, i.e., it lasted about two weeks" (p. 14, para. 27), taking into account that "this was only verbal sexual harassmentand that at the relevant times of the lawsuit, the plaintiff was 33 years old and the defendant was 46 years old", and finally, in light of the fact that the court was under the impression that a certain woman had worked "diligently in order to get the defendant to speak to her frankly and openly, she often asked him personal questions unnecessarily, both regarding his sexual preferences and his feelings towards her." difficulty in attributing decisive weight to her claims regarding the severe injury she experienced when the defendant answered her questions frankly."
- In light of all this, the court ruled that in the circumstances, the manager should be obligated to compensate a certain woman for the act of sexual harassment in the circumstances detailed above in the sum of ILS 50,000.
- As to the claim of harassment, the court ruled that "in the circumstances that have become clear, the plaintiff's claim that if she had acted to realize the defendant's sexual attraction to her, he would not have acted to terminate her employment as he did, " and also "it is not possible to exclude the fact that the plaintiff announced that she was holding a recording containing the defendant's confession about his sexual orientation/attraction to her. contributed to the defendant's decision that the plaintiff's probationary period was unsuccessful, and sought to renew the process to terminate her employment and acted to reduce her powers. The mixing of relevant considerations with non-relevant considerations justifies the use of the smudging model."
- In light of all of the above, but also taking into account that the alleged harassment period lasted only about two and a half weeks, since shortly after the complaint was filed, instructions were given regarding the removal of the manager from a certain person, with a person receiving full backing from the company's management, and subsequently the manager resigned, the court ruled that the manager must compensate her in the sum of ILS 50,000.
- With regard to a woman's claims that she is entitled to compensation for abuse, the court rules that these claims are not within its jurisdiction, but "beyond what is necessary, as we detailed above, we will clarify that even on the merits of the matter, we did not find any substance in the plaintiff's claims that from the beginning of her employment she suffered abuse (this is separate from the allegation of harassment that we discussed separately)."
Discussion and Decision
- As stated at the beginning of this judgment, each of the parties filed an appeal against the judgment. The manager argues in his appeal that the determinations in the judgment that he harassed and harassed her should be annulled. A woman, on the other hand, claims in her appeal that the regional court erred in not appointing a medical expert for the purpose of assessing the emotional damage caused to her as a result of her harassment by the manager. A further claims that "the evidentiary process and the issuance of the judgment were carried out in violation of the law, without a representative of the employees and only with a representative of the employers", and that she proved in evidence and witnesses that she was harassed and severely harassed a large number of times, and that what happened in practice was that "the respondent, a person who wears a kippah, is a married father of children, and comes from a cultural environment in which it is not customary to talk about sexuality in general and homosexuality in particular... He found a victim of the sexual discourse that permeates within him and wishes to go out specifically with an employee who is subordinate to him, this is a sexual discourse that he forced upon her by force of his authority... for the purpose of his sexual gratification" (paragraph 29 of the appeal). And finally, a certain woman claims that she was able to prove abuse, and that there was room to award her relief in respect of this.
- We will begin by presenting the normative framework relevant to the decision of the parties' claims, before proceeding to discuss and decide them.
Verbal Sexual Harassment and Its Boundaries
- In the explanatory notes to the billfor the prevention of sexual harassment (H.H. 2641, July 22,1997), the purpose of the prohibition on sexual harassment was explained as follows:
"Sexual harassment is an infringement on human dignity, liberty, privacy, and the right to equality. It violates the self-respect and social dignity of the harassed. It humiliates and degrades his humanity, inter alia by treating the person as a sexual object for the harasser's use. Sexual harassment denies the harasser's autonomy and control over his body and sexuality, violates his right to self-determination and invades his privacy, and also discriminates against him in relation to other people. Sexual harassment of women causes them to be humiliated in relation to their gender or sexuality and makes it difficult for them to integrate as equal members in the world of work and other areas of life, and thus it harms their equality."
- The law prohibits both verbal sexual harassment and physical sexual harassment. This, whether they fall within the scope of actual indecent acts, as defined in sections 348 and 349 of the Penal Law, 5737-1977, or whether they do not fall within the scope of an "indecent act" but constitute "repeated references directed at a person, focusing on his sexuality, When that person has shown the harasser that he is not interested in the aforementioned references" that are prohibited under section 3(a)(4) of the Prevention of Sexual Harassment Law, such as, for example, "back massage, hugging, grabbing hands and wrapping them around the victim's neck" (quoted in paragraph 260 of the judgment of Judge Miriam Naor in Criminal Appeal 3372/11 Katzav v. State of Israel (November 10,2011; and see the references therein), or within the framework of one of the other alternatives listed insection 3 of the Law. At the center of the proceeding before us is an allegation of verbal sexual harassment. Therefore, we will discuss below the normative framework for harassment of this type only.
- In the Zamir case (Labor Appeal (National) 9834-05-16 Zamir - State of Israel Ministry of Health (22.8.18, President Varda Wirth-Livneh)) a first-of-its-kind hearing was held in the case law of this Court on the substance and interpretation of some of the grounds for sexual harassment listed insection 3 of the law. Among other things, a discussion was held on the question of whether the verbal sexual harassment prohibited under section 3 of the law also includes remarks that do not directly relate to the sexuality of the harasser. This was in the framework of a proceeding involving a department manager at a government hospital who "shared" a medical secretary's information, including actual obscenity, about his sexual relations with women, showed her erotic photos and short videos of a sexual nature, used to tell her vulgar jokes in her presence, asked her questions about the sexual relations she was having, and more.
- In the Zamir case, this court clarified that sexual harassment prohibited by law also includes "creating a hostile environment" that is expressed in "engaging in sex, sexuality and gender in a way that makes the workplace intolerable for the employee. This type of sexual harassment can be expressed in vulgar jokes, the presentation of pornographic images, sexual comments, and more, " while clarifying that "these behaviors do not receive normative legitimacy because they were said in a work environment where free behavior in the field of sex is acceptable or because the words were said in jest."
- As part of the discussion of this prohibition, the Supreme Court's ruling, which emphasized the extreme severity of such behaviors when they involve employees who have a relationship of authority, was quoted: "Comments of a chauvinistic or sexist nature in a system of authority relations have no place in the workplace at all... Care must be taken to ensure that offensive remarks against women are not backed up 'under the guise of free behavior, social openness, or acceptable courtship'. These things must be a clear and clear organizational standard" (Justice (as he was then called) Uzi Fogelman in the High Court of Justice 3884/16 Anonymous v. Minister of Public Security (November 20,2017)). See also: Civil Servants Disciplinary Appeal 6713/96 State of Israel v. Ben Asher (March 9,1998; hereinafter: the Ben Asher case). It should be noted here, to be precise, that the Ben Asher case was given shortly before the Prevention of Sexual Harassment Law was enacted, but to this day it serves as "a particularly important framework for public discourse and the necessary understanding regarding the nature of prohibited behaviors" under the law (the quote is from an article by Justice Revital Turner, He reviewed a number of major rulings handed down over the years in matters of sexual harassment: "Exploitation, Not Affection: Sexual Harassment in the Workplace" 75 Years of Independence in Law (Nevo Publishing, 2023) 763).
- Indeed, even statements that are not of a blatant and explicit sexual nature - in one of the cases there was a reference to a supervisor who told the supervisor "I want you to be my friend" - may be considered verbal sexual harassment, as clarified by Judge (as she was described at the time) Varda Wirth-Livneh inThe Anonymous Case, 2010 (Labor Appeal (National) 454/08 Anonymous - Company Anonymous (12.4.10)):
"Such a wording can sometimes be implied in two ways - the aspect of an innocent friendship proposal without a sexual nature and the other aspect - an offer of friendship of a sexual nature, and when the words are implied in two ways, the circumstances surrounding the statement and the direct impression of the trial court from the testimonies must be examined."
- Moreover, in the Zamir case, it was held, relying on the Podlovsky case (Judge (as she was then described) Dorit Beinisch in Civil Appeal 5771/01 Podlovsky v. Civil Service Commissioner (24 October 2001)) that even offensive remarks of a distinctly sexual tone that do not directly relate to the sexuality of the harassedRather, they deal with the sexuality of the harasser himself, or the sexuality of others - such as the presentation of pornography to the harassed woman - fall within the scope of sections 3(a)(4) and 3(a)(5) of the Law, i.e., they should be regarded as expressions "directed at a person" - addressed to the complainant of sexual harassment - within the meaning of this term in the two subsections.
- Finally, sexual harassment committed in public, such as derogatory and humiliating statements made in meetings with many participants, should be viewed with extreme severity, in a manner that emphasizes the disrespect for the dignity of the harassed employee and may intensify the insult, humiliation and personal suffering (see: Labor Appeal (National) 32637-06-24 Anonymous - Odeh (January 14,2026) at paragraph 42)).
- In addition to the above decisive rulings, it was clarified in the case law that the prohibition of verbal sexual harassment does not derive a categorical prohibition on personal-intimate discourse conducted consensually between employees, even when this discourse deals with sexuality. Thus, in the words of Justice Yitzhak Zamir in theBen Asher case (ibid., at paragraph 21):
"It is clear that not every statement of a sexual nature, and not even any behavior of a sexual nature, even between people who do not maintain personal intimacy, constitutes sexual harassment... A good distinction must be made between statements and behaviors of a sexual nature that constitute prohibited harassment, which alone are called sexual harassment, and such statements and behaviors that do not deviate from acceptable and acceptable behavior..."
- Similarly, in the case of Anonymous 2008 (Labor Appeal (National) 274/06 Anonymous - Anonymous (26 March 2008)), Justice Varda Wirth-Livneh emphasized that:
"The provisions of the law seek to wrap the employee in a thick protective envelope, but at the same time do not seek to block the possibility of developing relationships of free will in the workplace or to enforce moral rules in any way. The law seeks to establish proper and strict norms of conduct where there is a relationship that by its very nature and nature is prone to exploitation. This is in order to deter a supervisor in the workplace from committing acts that may amount to sexual harassment under or under his or her subordinates. However, at the same time that the cause has been proven, the 'harasser' supervisor has the opportunity to prove that we are not dealing with sexual harassment... I will emphasize that what is stated in my opinion does not negate, even slightly, the fact that the workplace is the most natural environment for the creation of relationships of relationships, and the development of personal relationships and infatuations between colleagues and co-workers. Everything, subject to the duty of care of the authority holder."
- Let us clarify that even though the last quote is made in the context of a claim of physical sexual harassment, it applies even when the allegation is of verbal sexual harassment.
- When, then, does intimate personal expression, even in matters of sexuality, cross the line from the permissible to the forbidden? In the Ben-Asher case, which dealt with a disciplinary offense of the type of sexual harassment, but this is true even in cases such as the one before us, Justice Yitzhak Zamir wrote (ibid., in paragraph 4 of the judgment) as follows:
"The difficulty in determining tests or signs of sexual harassment that amounts to a disciplinary offense stems from the need to be very careful not to cross the blurred line between behavior of a sexual nature that is natural, and in certain circumstances even positive, and in any case it is considered a way of acceptable behavior in an open society, and behavior of a sexual nature that deviates from the path of acceptable behavior, harms another person, and is therefore considered a disciplinary offense... One must be careful not to provide maximum protection against sexual harassment lest the desire to provide maximum protection against sexual harassment lead to an excessively stringent test, in which his salary will come at a loss. A strict test may also intimidate decent people, who have no intention of sexual harassment, until they behave in a dry and alienated manner, being wary of any expression of closeness or affection, out of fear that such an expression, even if only verbal, may be interpreted as sexual harassment. Indeed, insiders say that such a fear has already caused disruption in interpersonal relationships, perhaps one could say human relationships, especially in the workplace. Such a result could harm not only society in general, but also the people who want to protect them from sexual harassment."