New Precedent in Israel – Abuse of a Position of Influence and Sexual Harassment in the Workplace

The Israeli National Labor Court recently handed down a precedent-setting ruling. This ruling expands the consequences of “position of authority in a work relationship” in investigating a sexual harassment claim to what the court calls a “position of influence.”

According to the Prevention of Sexual Harassment Law, to substantiate an allegation of sexual harassment, the complainant must prove he or she showed no interest in the act at the subject of the complaint. However, there is an important exception to this rule. When a relationship of authority exists between the defendant and the complainant, the complainant does not have to show that they were not interested for the court to deem the act sexual harassment.

The distinction between the situations (whether or not a position of authority exists) also affects employers’ obligations when investigating the complaint pursuant to the law.

The Complaint

The ruling involved a complainant who worked as a server at a hotel in Eilat. The defendant, about ten years her senior, worked as a chef in the hotel’s kitchen. The defendant was among the employees who had worked in the hotel . According to the complainant, the defendant sexually harassed her at a Purim party held by the hotel. According to the allegation, he tried to kiss her and touched her on several occasions. The complainant subsequently filed a complaint to the hotel and the hotel conducted an investigation of the complaint. During the investigation, the hotel’s management transferred the complainant to an alternative position in order to distance her from the defendant.

The complainant filed a claim with the Be’er Sheva Regional Labor Court against the defendant. She also filed a claim against the hotel on the grounds of numerous deficiencies in the investigation of her complaint. The regional court dismissed the complainant’s claim, inter alia, because it determined the complainant did not prove she was sexually harassed. The court ruled that no relationship of authority existed between the defendant and the complainant. The court also ruled that the hotel did not fail to fulfill its obligations regarding prevention of sexual harassment in the workplace or with respect to its investigation of the complaint.

The Appeal

On appeal, the National Labor Court ruled that the especially high standard that pertains to a position of authority also applies, to varying extents, a position of influence in a work relationship. A position of influence requires the defendant to exercise abundant caution in his behavior toward other employees. This standard is lower than for a person holding a position of authority but higher than for a coworker.

A position of influence in a work relationship may be characterized by one of the following:

• Disparity in professional experience between a complainant and a defendant.
• Disparity in professional standing between a complainant and a defendant and the defendant’s importance to the employer.
• The nature of the defendant’s role, which may delegate power of influence over other employees.
• The defendant’s seniority in the workplace.
• The nature of the defendant’s relations with other employees.
• The defendant’s reputation in the workplace.

The National Labor Court determined there was no position of authority in the defendant and complainant’s work relationship, since the complainant was not subordinate to the defendant during her work. However, it found the defendant did hold a position of influence in the work relationship with the complainant. The defendant served in a more senior role than the complainant. He was also a long-term employee that maintained good relations with the hotel’s senior employees.

The Ruling

The National Labor Court overturned the regional court’s ruling and ruled the defendant had sexually harassed the complainant. The court ordered the defendant to pay compensation to the complainant in the sum of ILS 40,000. It also ordered the hotel to pay compensation to the complainant in the sum of ILS 120,000 for deficiencies during the investigation, including injury to the complainant as a result of her transfer to an alternative position.

Employers’ Reassessment

This significant revision in the law’s interpretation is yet another reflection of the labor courts’ policy of strict adjudication of sexual harassment complaints and flaws or deficiencies in investigations.

This policy requires businesses to ensure strict fulfillment of employers’ ongoing obligations to prevent sexual harassment in the workplace. It demands employers ensure they are conducting investigations in compliance with the law’s provisions and regulations, by taking into account the possibility of positions of influence in the work relationship between the parties involved.

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Barnea Jaffa Lande‘s Employment Department is at your disposal should you have any questions about employers’ obligations to prevent sexual harassment in the workplace, and particularly with respect to conducting investigations pursuant to the law.

Jacki Silbermann is an associate in our firm’s Employment Department.