Labor Appeal (National) 38468-04-25; 42874-04-25 Anonymous vs. Anonymous - part 5

0 Admissibility and weight of the findings of the inquiry

47. At least with respect to some of its factual findings, the Regional Court noted that "our decision is similar to that of the inquirer, who found...". In this connection, we note that as Judge Leah Gliksman ruled in one of the cases (Application for Leave to Appeal (National) 20470-12-20 Orly Sela - Anonymous (October 31,2021)), that the findings of the examiner or the inquirer have no evidentiary weight: "The very fact that the acts of sexual harassment or harassment are not directly proved, the documents of inquiry as a rule are irrelevant, The court must determine whether the alleged events occurred or not on the basis of the testimonies and evidence before it, and not on the basis of testimonies heard in the investigation process or on the basis of the conclusions of the person in charge (or the examiner) who investigated the complaint."

The Burden of Proof in Sexual Harassment Claims

48. According to case law, "Allegations of sexual harassment are examined in accordance with the circumstances of each case... [while proving] that the improper behaviors did indeed occur, " but also with the understanding that "these are behaviors that may occur in secret, i.e., in the presence of the parties only...  [Therefore] there is an inherent difficulty in proving claims concerning sexual harassment" (Labor Appeal 68858-02-24 Anonymous v.  Anonymous (February 16,2025; Paragraph 31 of the opinion of President Varda Wirth-Livneh; hereinafter - The Anonymous 2025 case).
49. It was held that the primary burden of proving sexual harassment as well as the existence of a relationship of authority, a burden imposed on the plaintiff, is not an increased burden, but is the same burden as that imposed on each plaintiff, according to the balance of probabilities (The Anonymous case 2008; in paragraph 59 of the opinion of the judge (as described at the time) Varda Wirth-Livneh, and see the references therein). When the plaintiff met the initial burden of proving sexual harassment, and in a case such as the one before us, in which the plaintiff further claims that he was sexually harassed while abusing a relationship of authority, such that suggestions or references of a sexual nature or that focus on his sexuality should be considered sexual harassment, "even if the harassed person did not show the harasser that he was not interested in the said suggestions or references (section 6(c) of the Law), according to the case law "the burden is shifted to contradict '"Exploitation of the relationship between a harasser and a harasser (section 61 in the case of Anonymous 2008; For the broad interpretation that should be given according to the case law to "authority relations" as well as to the presumption of exploitation in the existence of a relationship of authority, see also: CA (National) 35999-10-21 Anonymous v.  Company Anonymous (December 13,2022), at paragraphs 54 to 55, and the references therein, below - the matter Anonymous 2022).
50. It should be noted here that in the case of Anonymous 2022, this court developed a new legal doctrine, known as "influence relations". This doctrine, which was also approved by the Supreme Court (HCJ 4272-23 Anonymous v.  National Labor Court (June 7,2023)) states that "between a relationship of authority (supervisor and subordinate) and lack of authority (co-workers of the same status" there is a category of relations, known as "Influence relations".  This category has an impact on the evidentiary level.  Thus, in a situation of influence relations - when there is a power gap between two employees in the workplace, even if there is no authority relationship between them - the standard of proof imposed on the harassed woman in relation to proving the element of expressing objective objection, as stated in sections 3(a)(3) and 3(a)(4) of the Law, is lower than the standard of proof imposed on a person who has been harassed by an employee in the same status as his.  It was further determined in connection with this that this is not a binary category, but rather a spectrum, so that the more significant the impact ratio, the lower the standard of evidence required to prove the disagreement (see ibid., paragraphs 62 and 63 of the judgment).
51. Similarly, according to our understanding and according to case law, authority relations are not a binary category but a spectrum. Thus, the more significant the power disparity between the parties between whom there is a relationship of authority, the higher the standard of evidence that the harasser will be required to meet in order to deny the presumption of exploitation (compare: Criminal Appeal 2192/23 Anonymous v.  State of Israel et al.  (June 27,2024; in paragraph 16 of the judgment of Justice (as he was then called) Yitzhak Amit; hereinafter - Criminal Appeal 2024).  Conversely, even if there is a relationship of authority between the parties, the less significant the disparity of powers, the lower the evidentiary threshold at which the harasser will be required to deny the presumption of exploitation.
52. With regard to the initiative to create an intimate discourse and reciprocity in cooperation - it was ruled that when the initiative for the intimate relationship was taken by the employee who claims to have been harassed, this has some weight when examining the question of the existence of consent - and hence the negation of the element of exploitation of a relationship of authority - but this should not be seen as an absolute indication that this is a consensual relationship of free will and free of coercion, and each case must be examined according to its circumstances (Criminal Appeal 9256/04 Noy - State of Israel (10 August 2005); The Anonymous 2008 case, at paragraphs 62 ff.). In the Zamir case (see section 35), Justice Wirth Livna addressed the question of reciprocity in this context, noting that insofar as there were statements on the part of the harassed woman in the same style, cooperation on her part, positive reactions, etc., it is possible that it could be learned from this that the remarks on sexual matters there were made within the framework of the 'friendship relationship' with the harassed woman.  As the harasser claimed there.  On the other hand, when it was proven that there was no reciprocity, and vice versa, when it was proven that the harassed woman expressed "disgust and disgust with the appellant's remarks, and it was even determined that she tried to avoid conversations with him that might spill over into sexual content that disturbed her", then it is clear that the harasser was unable to contradict the presumption of exploitation.
53. After all this, we will clarify that in the end, and after applying the special emphases that were established on the evidentiary level in determining factual findings in such claims (which we have discussed so far, and also see: in paragraphs 27 onwards in the matter of A 2025, and the references therein), the conclusion is that the plaintiff or the defendant - Depending on the question of who has the burden of proving one element or another of the elements of harassment - if he met the evidentiary threshold required of him, this is sufficient to lead to the conclusion that the claim should be accepted or dismissed. This is true even if there is - and in many cases there is - evidence to support the opposite conclusion.

Has sexual harassment been proven?

54. As we noted earlier, with regard to allegations of sexual harassment, the court divided the relevant three months in this matter - from February 14,2021, when a certain woman began working for the company, until May 8,2021, when she complained to the management about harassment, into two periods.
55. As for the first period - which lasted nearly two months from the beginning of a person' s employment, the Regional Court determined that during this period the manager had legitimate and relevant professional claims regarding the performance of a certain person, which ultimately led him to initiate a proceeding to terminate her employment. At the same time, the court was under the impression that during this period there was no flaw in the manager's conduct.  A person did not challenge this determination, so this is a conclusive factual finding.  More than necessary, we should note that a review of the affidavit of a certain person's main testimony shows that although it is loaded with allegations that the manager treated her inappropriately from the very first day of the company - including allegations of raising her voice, insults, unprofessional relations, creating unnecessary workload and "gaslighting" - these were crowned by a certain person herself under the heading of "bullying" (see sections 1 to 10 per affidavit).  Only later in the affidavit, in the middle of page 3, does the headline "sexual harassment" appear, and a certain person begins to describe incidents of sexual harassment that according to her, began on April 7,2021.  Thus, even according to a certain woman herself, during the first period of her employment, the manager behaved towards her in an abusive and inappropriate manner, which in her opinion amounted to abuse, but he did not sexually harass her.  As we will explain later in this judgment, claims of this kind between two employees do not fall within the jurisdiction of this court, and therefore there is no place for us to address them.
56. As for the second period, which began after that Zoom call with the representative from the United States, in which it was agreed that a certain woman would be given a new probationary period of two or three weeks before the question of her termination of employment would be examined again, here there are, in practice, two distinct claims on the part of a certain person: the first, an allegation that a conversation took place between the parties in the manager's office, at an unusual evening and in which the office was already emptied of people, which included sexually explicit content; and the second, a claim that on several occasions after that conversation, the manager told a certain woman that he was attracted to her and loved her.
57. Let's start with a conversation that took place between the two on April 7,2021, the day after the conversation with the representative. According to a certain woman, in that conversation, the manager began to sexually harass her by expressing himself sexually, vulgarly, and particularly bluntly, really pornographic.  The regional court explicitly rejected her version and accepted the manager's version that all that was in that conversation - and that too after a large number of personal questions and a person's entry into the personal sphere - was an exposure on the part of an intimate detail about him - he said that he had once been in a strip club where there was a naked man and "listen, you may be right and I have gay tendencies."
58. The main reason why the court accepted the director's version of the content of that conversation was the fact that from additional evidence - both text message correspondence between the two and from the warning letter drafted by the lawyer - it clearly emerges that a certain woman shared with the manager that she had recorded the conversation on April 7,2021. However, such a recording was not submitted as evidence on the part of a particular person during the litigation in the Regional Court - only a recording was submitted by a certain person of a later conversation between the two that took place on April 27,2021 - and this is contrary to the case law according to which "a party who wishes to establish a claim of 'reflective truth' by means of tapes he made in real time is expected to provide information about all the recordings he made" (Labor Appeal) (National) 2152-10-16 Ben Zion - The Association for the Advancement of Education (December 10,2017, in paragraph 18 of the judgment; hereinafter - the Ben Zion case).
59. As things stand, the Regional Court rightly exercised the evidentiary presumption that from the fact that a party refrained from presenting relevant evidence "that is within his reach, without giving a reasonable explanation for it, it can be concluded that if that evidence had been brought - it would have acted against him...  and the more significant the evidence, the more extreme the court may draw more extreme conclusions from its non-presentation" (Civil Appeal 7300/21 Asraf v.  Bublil (March 12,2024; in paragraph 36 of the opinion of Justice Ofer Grosskopf)).
60. A review of the detailed appeal filed by a certain woman shows that in a manner that raised questions in our case, she did not relate at all to the matter of the recording that was not submitted by her, and she did not claim that the Regional Court erred in the manner in which it analyzed the legal significance of its failure to submit it or raised any other claim in relation to that recording. The Director, for his part, argued in his summaries that the Tribunal erred in exercising the evidentiary presumption only with respect to the question of who initiated the frank discourse about the Manager's sexual orientation, and in inadvertently not completely rejecting Anonymous's version of the content of that conversation, including making a negative finding in this context with respect to the reliability of a certain woman.  According to the director, since that recording was not presented as evidence, it was appropriate to accept in full his version that a certain woman was the one who had dubbed him to reveal to her the most personal and intimate information about his sexual preferences and his feelings, and therefore the answers he gave to her frankly should not be treated as sexual harassment or as things that could have caused a certain woman embarrassment or harmed her dignity.  And now, in a manner that increased the question marks and perplexity in our case, even in the summaries of a certain woman before us, she did not refer even a word to the matter of the material failure of not to submit that recording, and she did not see fit to deal even verbally with the determinations in the judgment (and the arguments that were the focus of the director's appeal) with regard to the clear evidentiary significance that should be given to it.
61. In fact, only in the oral hearing that took place before us, and in response to a direct question addressed to her counsel on this matter, was it stated that there was no such recording. However, the very argument of So-and-so's counsel in this matter (without being anchored in the testimony of a certain person) does not cure the defect of ignoring and not addressing this in the notice of appeal on her behalf as well as in her summaries before us, and it does not cancel the double and perhaps even triple evidentiary basis for the existence of the recording: the explicit statement of a certain person to the manager in a text message dated April 19,2021 that she had a recording of the matter, as well as what was stated in this regard in the letter of her attorney at the time, when it can be assumed that what was stated in this letter was preceded by another statement by a certain woman to her attorney regarding the existence of this recording.  In its decision as to whether a person initiated the conversation between them, the Regional Court gave decisive weight to the non-presentation of the recording, without a reasonable explanation, and thus in fact determined a factual finding - in which we see no reason or justification to intervene - that such a recording does indeed exist.
62. Moreover, and in an examination of more than necessary, even if we would assume in favor of a certain person that she did indeed incorrectly claim to the manager that she had a recording of that conversation - even though such a claim does not appear, as stated, neither in her notice of appeal nor in her summaries - this still does not explain why even though her counsel at the time stated the existence of this recording in the draft of the letter that a certain person attached to the affidavit, no explanation was given for the claim in the affidavit of a certain person and in the version she gave to the Regional Court. Therefore, it is necessary to draw evidentiary conclusions from this matter as to its obligation (compare: Application for Leave to Appeal (National) 39917-09-20 Anonymous Company - Anonymous Company (December 10,2020)), as determined in the judgment of the Regional Court.
63. As to the Regional Court's determinations with regard to the conduct of a certain woman after the conversation of April 7,2021, according to which "after the conversation of April 7,2021, there were 1-3 incidents in which the defendant expressed himself towards the plaintiff in a manner that can be inferred from him that he was sexually attracted to her, " our opinion differs from that of the Regional Court. We are of the opinion that this determination has not been proven, and we will reason.
64. The tribunal held as a factual finding that we find no justification for intervening in it, and it is true even according to our own examination, that in all the correspondence between the parties after the conversation of April 7,2021, there is not the slightest hint of the existence of sexual attraction on the part of the manager towards a certain woman. However, the court based its determination on the fact that the manager told a certain woman (on one occasion, and perhaps even on two or three occasions) that he was attracted to her, on the transcript of the confrontation conversation that took place between the two on April 27,2021.  In this context, the court noted that "we have not lost sight of the fact that this is a conversation that was recorded by the plaintiff without the defendant's knowledge, and in which the plaintiff is heard laying out her arguments at length and continuously, in a manner that makes it difficult to attribute decisive significance to the fact that the defendant did not protest/deny each of the allegations leveled at him one after the other without the possibility of responding to each of them separately, and at the same time, During the conversation, the plaintiff explicitly mentioned several times the claim that the defendant had told her that he was sexually attracted to her, and this matter was not denied at any stage in the conversation, and therefore we determine that after the conversation on April 7,2021, there were 1-3 incidents in which the defendant expressed himself to the plaintiff in a manner that can be learned that he was sexually attracted to her."
65. As is well known, in assessing the evidentiary weight of a tape in which one of the parties recorded the other side, while claiming that the other party admitted to one factual matter or another, "it is necessary to examine, inter alia, the content of the statements in their entirety, their context, the manner of the dialogue, i.e., whether the recorded person is speaking innocently and on his own initiative, or whether it lies in the discourse of leading the recorder to areas to which he would not necessarily have reached had it not been for this transport. and more" (Justice Hani Ofek Gendler in paragraph 18 of the Ben-Zion case).  If this is usually the case, one should be careful not to draw conclusions on the basis of silence, which can stem from a number of reasons and does not usually have the significance required to draw evidentiary conclusions.
66. In the case before us, we are of the opinion that in the circumstances of the case, the court imposed an unreasonable burden on the manager, who was required to respond immediately and in real time to every claim that was leveled at him continuously, even though it had no reason to assess at that point in time that the failure to deny the matter immediately and unequivocally might lead to him being required to compensate a certain woman for sexual harassment. This is a standard of response that is usually required and even expected, except in exceptional circumstances, from a knowledgeable litigant who stands on the witness stand in court after receiving legal advice, but there is no place to place it in every case and in every small talk that takes place between co-workers.  On the contrary, there may well be circumstances in which it is only legitimate for a manager, who is confronted with an agitated employee who hurls accusations at him, to allow that employee to "unload" his claims against him, without responding and interrupting the series of claims raised against him by that employee.  In our opinion, in the circumstances of the case before us, it is certainly possible to reach a factual conclusion that this is what happened in that conversation, as opposed to an evidentiary conclusion based on the absence of an immediate denial on the part of the manager that constituted an admission on his part of the correctness of the words.
67. Moreover, from the beginning of the litigation, and also before us, a certain manager claimed that the manager had engaged in emotional manipulation towards her (which she called "gaslighting"), a kind of "distressing brainwashing" according to her own description, on issues that were not work topics, the purpose of which was to undermine her mental stability while forcing a personal discourse in which she was not interested. However, there is clear evidence in the file that it was Anonymous who contacted the manager following the Zoom call with the representative in the United States, and noted to him that "I have a feeling that we will succeed in becoming a BFF and get out of the loop we were in" (a text message to the manager dated April 6,2021, with the BFF referring to best friends forever).), and that "all in all, the message is that I want us to be in the Staiz for real, not as a mission.  Sofer appreciates yesterday's sharing...  I'm sorry if I asked questions yesterday out of place" (Anonymous's text message to the principal dated April 8,2021).  Therefore, on the face of it, it is not possible to rule out the possibility that it was precisely a certain woman who spoke to the manager - who revealed to her a very intimate detail about him - to continue to open his secrets to her in a conversation that was recorded by her without his knowledge.  We will add that even in the correspondence dated April 19,2021, a certain person continued to try to create intimacy in her interaction with the manager by writing, "Nothing has changed since the conversation...  We still don't understand each otherJ...  It's our thing, not understanding each other, every bestie has a piece from a friend."
68. Another thing that strengthens the thesis of reciprocity (and non-coercion) is that in this case, the two talked mutually about a personal sexual orientation or attraction - both hers and his. The appellant told a certain woman that he might have been attracted to men as well, long after she had told me, already near the beginning of her employment, that she had had an experience with a woman.  As things stand, we are dealing with a coming out conversation, which by its nature is very intimate, complex, and about issues of enormous sensitivity.  We are of the opinion that even if another person could have conducted the coming out conversation better and more accurately, in view of all the circumstances of the matter, we do not believe that it should be regarded as sexual harassment.  This is the case in general, and especially since we are dealing with a married person who wears a kippah, and given the emotional complexity involved in coming out of the closet, even in front of one person, in such a situation (in this context, we will refer the reader to Zvi Ben Meir's book "Whose Sukkah Falls", which was published in the Hapoalim Libraries in 2024).which presents the mental dilemmas of a married person from the religious sector who is dealing with sexual orientation for members of his own sex).  In any event, the manager's disclosure of his secrets related to an event that happened in the past, without any impact on a certain woman, in the sense that she was not part of the event in the past and the sharing was not intended to convey a personal message to her regarding their future relationship.
69. The Regional Court also held - and we found no justification for interfering with this factual finding - that a certain woman "was not passive, and did not settle for limited cooperation, but worked diligently in order to get the defendant to speak to her frankly and openly, and often asked him personal questions unnecessarily, both regarding his sexual preferences and his feelings towards her" (p. 15).3 of the judgment).  In other words, the Regional Court ruled that a certain person was the force that motivated the subject of the conversation, and she not only agreed to it in silence but initiated it and asked for it, while the manager responded to her request and answered the questions.  Therefore, the manager was able to lift the burden that was on him and prove that this was not an abuse of authority.  We have reached this conclusion even with regard to the case law that we discussed earlier, according to which the fact that the employee initiated the intimate interaction does not have decisive weight in the matter of non-abuse of authority, and the totality of the circumstances of the matter, including the disparity of power between the parties, must be examined.
70. In this regard, we note that on the one hand, there are power gaps between the parties, since from a hierarchical point of view it is the CEO and the VP, and that these gaps increased from the moment the dialogue between them took place while a certain person was on probationary and was a candidate for dismissal, but on the other hand, the power disparities between the two are somewhat less than those that would have been if the case had been a junior employee. In addition, as we noted earlier, and in light of the findings of the Regional Court, from the beginning of their joint work, this was characterized by a friendly and informal discourse, with a certain person herself seeking to create a situation in which the two would become "besties".  When this is the context of the matter, it would not be correct in our opinion to determine that the manager took advantage of the undisputed relationship of authority that did exist between them and sexually harassed a certain person, but for the reason that at a certain moment in the ongoing discourse between the parties, some of which became really personal and intimate, he came out of the closet in front of her, and by the way, it is possible that he said something or deviated in something from what a certain person expected of him.  To be precise, both sides apologized for misplaced statements and questions, and even for this reason it is clear that it would be incorrect to draw a far-reaching evidentiary conclusion regarding sexual harassment on the part of the manager.
71. And finally, in response to a woman's claims that the Regional Court did not address or analyze the testimonies on her behalf, which support her claim that she was sexually harassed, there was indeed a real flaw in the Regional Court's judgment in that it did not address or analyze the testimonies. However, returning a matter to the trial court is required only in a situation where the lack of reference or reasoning is likely to lead to a different outcome (Criminal Appeal 8631/13 Anonymous v.  State of Israel (February 4,2015)), when sometimes there is a preference whereby the appellate court will decide on issues that were not heard in the trial court or complete a reasoning that was not properly reasoned, in order to streamline the proceeding and prevent its repetition.  This is to the extent that all the data is available to it (High Court of Justice 1666/22 Almagor v.  National Labor Court (December 12,2022)).
72. In accordance with these rulings, and after examining the testimonies and evidence, we have reached the conclusion that there is no justification for returning the hearing to the Regional Court to complete its judgment in this aspect, since these testimonies do not affect the outcome, and we will explain:

First, a certain person testified in her favor of a good friend with whom she has been in close contact for more than twenty years.  The company testified that a certain person regularly shared with her both the abuse and the harassment she claimed she had undergone, including physical sexual harassment.  According to the claim, the sharing was made both in phone calls and text messages, in which a certain woman even mentioned that she was in real mental distress: "I haven't eaten for two days, " "I'm with chest pressure...", "I'm under atomic pressure..." and more.  However, the company that testified - and a certain person herself - did not attach the text message correspondence, even though it is critical evidence.  Even when the company was asked to review the correspondence with a certain person at the time of the hearing, a correspondence that was still kept on her phone, it was not able to locate the same correspondence that was in it, so it claimed, in order to prove that in real time a certain person shared with her the harassment that she allegedly experienced.  Since this is the state of affairs, the company's testimony does not support the claims of a certain person.  On the contrary, it seems that the evidentiary presumption should be applied to the duty of a certain woman, according to which to the extent that the correspondence between the two was presented, it would not have supported her claims, but on the contrary;