The Israeli Prevention of Sexual Harassment Law may not explicitly consider sexual harassment that creates a hostile environment an offense, but this phenomenon exists and is rampant in many workplaces. Surprisingly, the problem arises mostly in “young” companies and creative offices, which cultivate a hostile work environment rife with sexual innuendo and even crass sexual comments and behavior. The Israeli media recently saw reports of widespread sexual harassment at several leading advertising firms in Israel. According to the reports, sexual innuendo forms an integral part of the work environment at these firms. The use of flagrant sexual language as a norm in a firm, the relaying of nude photos among the firms’ employees, and the loud spouting of sexual jokes in workspaces are all just a part of the daily office routine.
Toxic Work Culture
In recent months, several major gaming companies in the United States found themselves at the center of a media frenzy concerning hostile work environments. The well-known gaming company Activision Blizzard (creator of the popular games “World of Warcraft” and “Call of Duty”) boasts beautiful, glittering offices, with perks galore and a relatively young staff, typical of many high-tech companies. But Activision Blizzard also has a dark side. A lawsuit was recently filed against the company, alleging that management took no action to prevent the widespread sexual harassment taking place in the company. The complaint equates the work environment to a “frat house,” including office chat about sexual relations and jokes about rape, as well male employees (most of whom are drunk) habitually roaming in a pack among the women in the office and making lewd comments to them.
This is not Activision Blizzard’s first lawsuit on the grounds that it failed to prevent sexual harassment. The State of California already sued the company six months ago for sexual harassment and discrimination. The State alleged the company’s offices offer “fertile ground for harassment and discrimination against women.” It claimed female employees constantly had to fend off sexual comments and advances, typical behavior there.
A Widespread, Persistent Phenomenon
The work environment at Activision Blizzard is not atypical in the gaming sector. At the end of December 2021, Riot Games agreed to pay a total of USD 100 million to settle a class action filed by former employees (Riot Games is one of the largest and leading companies in the gaming sector and the creator of the popular game “League of Legends”). Back in 2018, reports surfaced about numerous incidents of alleged sexual harassment at Riot Games. The incidents ranged from sexist comments to executives circulating lists of female employees with whom they wanted to have sexual relations. Male employees at Riot Games customarily passed around photos of genitalia and sent widely-circulated emails commenting on their female colleagues’ physiques and discussing having sex with them. According to the statements by both male and female employees, the work environment was rife with sexual content, part of the company’s “bro culture.”
The assumption that today, in the #MeToo era, sexual harassment that is so overt and lewd no longer occurs, and was a problem for previous generations, turns out to be misguided. As recent legal proceedings suggest, a humiliating and toxic work environment can “flourish” in shiny modern offices with a relatively young workforce. A hostile work environment brought about by its constant preoccupation with sex is a form of sexual harassment.
Not Only in America
Israeli law also addresses hostile work environments of this sort. The Prevention of Sexual Harassment Law, enacted in 1998, does not specifically refer to sexual harassment that creates a hostile work environment. The law considers “sexual harassment,” propositions or references “addressed to a person”. However, the Israeli Supreme Court and the labor courts recognize sexual harassment that comes in the form of statements and acts addressed to the general employee population and which poison the workplace atmosphere.
In the late 1990s the Israeli Supreme Court made reference to hostile work environments caused by such sexual harassment. In a ruling concerning a professor at Kibbutzim College who sexually harassed a female student, the court determined that use of language rife with sexual content and displaying pornographic photographs in the workplace might also be considered sexual harassment.
The Supreme Court made similar determinations several years later, when it ruled that sexual harassment does not have to target a particular person. According to the Court, sexual harassment can also take the form of comments or acts “intended to draw the attention of the target of harassment even if they do not refer specifically to that person.” In that case, the manager of a public organization that works with the army giving guidance to discharged soldiers customarily used expressions of a sexual nature and told lewd jokes to the unit’s female soldiers. He also introduced himself to female soldiers stationed there as a sexologist and asked them intimate questions. The manager also had sexually explicit photographs hanging in his office.
The Bounds of Sexual Harassment
Over the next few years, the Supreme Court and the labor courts delineated the bounds of harassment hostile work environment instigated by sexual harassment. The courts have ruled on several occasions that an uninhibited and lighthearted atmosphere in which it is customary to laugh about sexual content and use vulgar language cannot be justified. The Court ruled that this, in fact, constitutes a form of sexual harassment. Such was the ruling in relation to a high-school teacher who habitually told vulgar jokes and made comments of a sexual nature to female pupils and counselors during annual school trips. This was also the conclusion with respect to a hospital administrator who regularly told lewd jokes during nurse training sessions.
A few years ago, the National Labor Court deliberated a case involving a head of department at the Barzilai Hospital in Ashkelon who sexually harassed a subordinate female medical secretary. For eight years, starting in 1999, the head of department shared explicit details of his personal life with her (including with respect to his sexual relations), discussed various sexual topics with her, and showed her sexual photographs and videos on his office computer.
In August 2018, the Court ruled this behavior constituted sexual harassment of the female employee. According to the ruling, despite the fact the harasser had not directly referred to the female employee’s body or sexuality, he created a hostile work environment, exposing the employee to sexual comments and content against her will and in a disrespecting manner. This case generated a good deal of buzz in the media and for good reason. The National Labor Court expanded the interpretation of sexual harassment and instituted a new behavioral norm in the workplace.
The Employer’s Responsibility
It is important to keep in mind that sexual harassment in the workplace does not only concern the complainant and the accused. In Israel, employers are obligated to take various measures to prevent sexual harassment and bullying in the workplace. This obligation includes preventing a hostile workplace.
Within this context, employers are obligated to make sure their employees are not circulating offensive content in the work environment. The employer is obligated to ensure that workplace conversations remain respectful, including via internal communication channels. It is not easy being the responsible adult and it undoubtedly requires considerable effort. However, at the end of the day, this effort is worthwhile for everyone, creating a pleasant and safe work environment for all employees, and helping the employer to avoid distressing legal proceedings, such as the lawsuits and class action recently conducted against Activision Blizzard and Riot Games.
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Adv. Jacki Silbermann is an associate in the Employment department.
For any additional questions, Barnea law firm is at your service.