THE SUPREME COURT OF ISRAEL
BEFORE: Aaron Barak, Vice Chief Justice Daliyah Dorner, Justice
Yaakov Kedmi, Justice PETITION: Bagaz 712/94
PETITIONER: EL-AL, THE ISRAELI AIRLINES, LTD.
RESPONDENTS: (1) JONATHAN DANILOWITZ
(2) THE STATE INDUSTRIAL TRIBUNAL SESSION HELD: May 4, 1994
ARGUED FOR PETITIONER: I. Vinder; A. Ben-Israel, Adv. ARGUED FOR RESPONDENT (1): S. Dunevitz; O. Kalemarro, Adv. JUDGMENT1
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Lead Opinion of Vice Chief Justice Barak:
A collective agreement, as amended by a collective arrangement,2 confers a benefit upon "a spouse" (in a husband and wife relationship) and to "a cohabitant publicly known as a spouse" of an employee. Is this benefit conferred also upon a partner cohabitating with an employee? This is the question brought before us by the present petition.
THE BACKGROUND FACTS
1. Respondent is employed as a flight assistant by petitioner (The El-Al Company). Under the collective agreement, every permanent employee is entitled, once in each year, to free (or discounted) flight tickets for himself, as well as for his "spouse (husband or wife)." Under the subsequently arrived at collective arrangement, flight tickets have been conferred also upon an employee's "cohabitant publicly known as his/her wife/husband, if the two live together and maintain common household akin to that of a married couple, and they are legally prevented from marrying each other."3
2. Respondent applied to petitioner (on August 21, 1988) asking it to recognize his cohabitating male partner as his "spouse" for the purposes of obtaining an annual flight ticket, free or discounted. In his application, he clarified that the two maintain both a stable and lasting relationship (as of 1979), manifested, inter alia, by a common household maintained in a jointly purchased and owned apartment. Respondent's application was rejected.
3. Respondent petitioned before the District Industrial Tribunal for a declaratory relief that will uphold his entitlement to free or discounted flight tickets for his male cohabitant. Consonantly with the procedural arrangement mutually consented to by the parties, the Tribunal decided to deal first with the legal issue. This issue was resolved by the Tribunal (Judge Lubotzki and Public Representatives Ozri and Pinchas) as follows:
(a) The above-mentioned provision of the collective agreement4 does not confer any right upon an employee's partner, and this did not amount to an illegal
(b) However, the provision of the collective arrangement conferring a benefit upon legally unmarriable spouses of the employees - but not upon homosexual spouses, which similarly cannot marry each other - does amount to an illegal
discrimination. This discrimination was held to be illegal under the Equal Employment Opportunities Act of 1988 ("Act"). According to this Act (section 2) - as amended on January 1, 1992 - "An employer shall not discriminate against his employees, relatedly to employment conditions, because of their sex, sexual orientation, personal status or parenthood." By virtue of this provision, the discriminatory collective arrangement clause was held to be invalid, and the Tribunal went on to settle the outstanding factual issues.
4. El-Al appealed against this decision before the State Industrial Tribunal. This Tribunal (President Goldberg, Vice- President Adler, Judge Eliassoff and Public Representatives Abramovitz, Friedman and Galin) dismissed the appeal, holding that:
(a) Respondent does not fall within the relevant definition of the right-holder under
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the collective agreement, as the expression "spouse (husband or wife)" does not cover a
(b) Nor does respondent fall within the definition of the right-holder under the collective arrangement, as the expression "a cohabitant publicly known as his/her
wife/husband" - properly understood within its context - also does not cover a homosexual spouse;
(c) Yet, this state of affairs constitutes an illegal discrimination on the basis of sexual orientation, which violates the principle of equality, as laid down by the Equal Employment Opportunities Act. Under this Act (as amended in 1992) respondent is accordingly entitled to the employment benefit of which he was discriminatorily
deprived, as of January 1, 1992.5 5. The present petition challenges the above decision of the State Industrial Tribunal.6 El-Al (petitioner) asks us to determine that its refusal to provide respondent with flight tickets for his male cohabitant does not constitute an illegal discrimination under the Equal Employment Opportunities Act. ... Respondent urges us not to interfere with the decision reached by the State Industrial Tribunal ...
THE INTERPRETIVE FOOTING
6. Respondent's claim can be supported by two alternate legal arguments. According to one of them, the entitlement in question, provided for by the collective agreement and arrangement - on their proper interpretation - extends not merely to heterosexual, but also to homosexual spouses. Respondent's right to flight tickets would accordingly be a contractual inner- textual right. The legal meaning of the text that upholds this right would thus be preferred over its other linguistic meanings. 7. This proposition was rejected by the State Industrial Tribunal. This Tribunal stated that "in our case, the parties to the collective agreement have explicitly indicated lack of intention to include homosexual partners within the definition of a `spouse;' the words `husband or wife,' attached to this definition is a clear manifestation of the parties' intention to cover by their agreement `spouses' stricto sensu only." As for the expression "a cohabitant publicly known as his/her wife/husband," which appears in the collective arrangement, the Tribunal held that it was similarly attached to "husband/wife," a linguistic usage evidencing the parties' intention not to extend the entitlement in question to homosexual spouses.
THE STATUTORY FOOTING
8. According to another legal argument - which was adopted by the State Industrial Tribunal - respondent's entitlement stems from the anti-discrimination provisions laid down by the Equal Employment Opportunities Act. This entitlement is conditioned upon the finding of a prohibited discrimination in the whole contractual arrangement between El-Al and its employees, which raises two distinct issues:
(a) Does this arrangement discriminate against employees on the basis of sexual orientation?;
(b) What is the remedy that an employee discriminated against is entitled to?
9. In his arguments before us, respondent decided not to pursue the idea of basing his claim
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on the `interpretive footing,' which could have presented a complex legal problem [citing Israeli case-law and Bowman & Cornish, 92 Colum.L.Rev. 1164 (1992); Elbin, 51 Ohio State L.J. 1067 (1990)]. I shall therefore now turn to the 'statutory footing.'
THE RIGHT TO EQUALITY AND ITS INFRINGEMENT
10. Equality is a fundamental constitutional principle of Israeli law [citing the case-law].
11. In Israel, the equality principle is anchored in a number of normative frameworks. First, it is a case-law principle, a fruit of the "Israeli common law" which has been recognized and developed by Israeli courts. This principle is projected upon every piece of legislation and is applied as an interpretive standard [citing the case-law].
12. Second, the equality principle is anchored in Israeli statutes. Its birth was manifested by the Declaration of Independence.7 Its continual life is manifested by statutes which provide for the maintenance of equality in particular settings [citing as examples various statutes aimed at equalizing women's rights; a statute prohibiting discrimination by an employment-arranging agency ran by the State; a statute providing for affirmative action in favor of female candidates for directorial posts in governmental companies]. Another statute - relevant to our case, which will therefore be dealt with separately - is the Equal Employment Opportunities Act. The culmination point reached by the equality principle is manifested by the Basic Law: Human Dignity and Freedom, which recognized the right to equality as a constitutional right that trumps ordinary statutes [citing from the case-law on this point].
13. It should, however, be noted that the right to equality is not an absolute right. Like any other human right, this right can be balanced against other interests, which would determine its boundaries [citing case-law]. Limitations on the equality principle can be imposed only when they fit the values of the State of Israel, and when they have been enacted for a proper purpose and are not excessive [as prescribed by section 8 of the Basic Law: Human Dignity and Freedom].
14. Our factual starting point is that people differ from each other [citing case-law]. The equality principle should be understood against this background. Its meaning is equality under the law and - as far as differences between human beings are concerned - neutrality of the law. This entails equality in exercising freedoms. This also entails equality of opportunities. This provides for equal application of the normative-legal order to all individuals, despite the differences existing between them as a matter of fact. The equality principle does not, however, require that a uniform law be applied in relation to everyone. This principle does not outlaw, ipso facto, differentiated legal treatments, when applied to different people. This principle requires that any differentiation in legal treatment be supported by good reasons. It thus recognizes the possibility of good reasons justifying a differentiated legal treatment. Discrimination - the antipode of equality - will therefore take place only when no such reasons can be found [citing case-law].
15. [I]n the present case, El-Al decided to provide a benefit - in the form of flight tickets - to each employee for the use of his spouse, i.e., for the use of a person with whom he lives and maintains a common household, whom he leaves when he flies away from home, and to whom he returns at the end of his work. This is the standard common to both married spouses and unmarried cohabitants. The purpose of this benefit is not to strengthen the institution of marriage. Indeed, the benefit is conferred also upon an employee's cohabitant even when he/she is married to someone else. The benefit is thus provided to a lasting
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"living- together" partnership which displays a strongly tied-up social relationship. It is therefore obvious, in my view, that to take this benefit away from homosexual spouses constitutes a discriminatory violation of the equality principle. The differentiating reason standing behind this decision has to do with sexual orientation. But this latter factor is both immaterial and unfair. Is it less painful for a person to leave a homosexual spouse than it would have been if his spouse's sex were different? Does a homosexual cohabitation differ from a heterosexual one, as far as partnership, unity and a social-cell relationship are concerned?
16. It is arguable that homosexual and heterosexual relationships are fundamentally different, an argument which strikes me as problematic, but it need not to be resolved in this case. I am therefore prepared to proceed from the assumption that in different social contexts differentiation between homosexuals and heterosexuals can be sustained. The question that we are here to resolve is whether this differentiation is relevant to our issue. And our issue is the existence of a partnership, a unity, and a social-cell relationship. To differentiate in this context - as El-Al did - between homosexual and heterosexual spouses amounts to both clear and offensive discrimination.
DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION
17. [W]hat are the implications of this discrimination? Any such discrimination is illegal; yet, the gravity of discrimination admits of different degrees, depending on the seriousness of the violation of the equality principle. We, for example, perceive as most severe discriminations motivated by race, religion, nationality, language, ethnicity and age. Our legal system also perceives as necessary to secure equality amongst genders and prevent any gender discrimination [citing case-law]. In the present case, the discrimination was arguably motivated by improper sex-related reasons. But it is also arguable that no such discrimination took place, as El-Al's benefits are conferred equally on men and women. This latter proposition does not strike me as persuasive, but I have no need to determine its validity, as there can be no doubt that respondent was discriminated against on the basis of his sexual orientation. Such discrimination - against both gays and lesbians - is illegal. This conclusion is mandated by the Equal Employment Opportunities Act, section 2 [recites the section and cites a portion of the Knesset debate]. ... Under this provision, sexual orientation is irrelevant to employment, unless the very nature of the job makes it relevant. As far as employment conditions are concerned, an employer ought to display neutrality towards the sexual orientations of his employees. ... This will implement the equality principle. This will keep the employee's privacy protected from intrusions... [restates the El-Al policy and explains once again its discriminatory nature] Perhaps someone at El-Al believes that gay relationships should not be encouraged. This would be a value-judgment, and we are not concerned with this in the present case. ... Findings of discrimination cannot be dependent on the discriminator's way of thinking and desires. Inequality may sometimes be justified by both legitimate and compelling reasons. To provide such reasons is a burden that would be difficult to discharge. This burden has not been discharged in the present case. Nor has it been attempted to be discharged. All that we heard is that gay couples "are different," but this does not eliminate the discrimination [refers to Cameli, 68 Chicago-Kent L.Rev. 447].
REMEDIES FOR INFRINGING THE RIGHT TO EQUALITY
18. Now I move to the second question, which is about the remedy to be granted to an
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employee who was subjected to a discriminatory treatment. Under the contract law, contract provisions that constitute an illegal discrimination are not valid. The fate of such a contract would thus be dependent on the possibility of "severance," i.e., on the possibility to perform an operation on its text that would remove the sick part from the healthy part and thus restore equality and keep the contract alive [cites case-law]. Not susceptible to such an operation, our contractual text is different. If so, what should be our respondent's remedy?
19. One option facially available to us is to deprive all El- Al's employees of the benefit in question. This manifestly unreasonable outcome has not even been argued for by respondent, and rightly so.
20. The appropriate remedy in this case is to determine that respondent is entitled to the benefit in question. This remedy is known in certain legal systems as an "extension of the text" or as "reading in." Each of these concepts is, however, inadequate. The judge does not touch the text at all. He ordains that the equality principle exercises normative superiority over the text and that the text therefore has to surrender to this principle, so that the illegal discrimination can be removed.
21. This remedy is well-known in American law [cites Harlan, J. in Welsh v. US, 398 US 333 (1969) and Bader & Ginsburg, 28 Cl. St. L.Rev. 301 (1979); Miller, 20 Harv. C.R.C.L. L.Rev. 77 (1985); and Califano v Westcott, 443 US 76 (1979)].
22. The Supreme Court of Canada took the same path, by using the "reading in" rhetoric [cites to Schachter v Canada 93 DLR (4th) 1, 12 (1992)].
23. Implementing the goals of the constitutional law, such remedies ought to be adopted. They should not however be used mechanistically, without accounting for the difficulties in their implementation, for their impact on the budget, and for the risk of excessive judicial interference which might disturb the constitutional structure. For example, benefits conferred by the law upon a marginal group of people cannot be extended to a large and substantial group. This technique also should not be used in a way that would impose liabilities on the otherwise exempted people, who enjoy a preferential treatment in comparison with others.
24. The constitutional supremacy of this remedy prescribes for its application in the labor law ... [explains this legal hierarchy]. In our case, this remedy would not lead to any of the deleterious consequences listed above. Consequently, respondent is entitled to the benefit in question.
Petition dismissed with costs.
Concurring Opinion of Justice Daliyah Dorner:
1. Michel Foucault has examined the influence exerted by social norms - which reflect the "acceptable" and the "normal" and which change from time to time and from society to society - upon the law's enforcement. He wrote:
The power of social norms is added to other powers - the law and the text - and forces upon them new limitations ... The power of social norms is stronger in a system founded upon formal equality because it introduces into the equality rules individualizing distinctions.8
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In my view, it is impossible to rule on this petition without considering the changes which have occurred in Israeli social norms in respect of homosexuality.
2. [recites the facts stated by Barak, J. and the dissenting opinion of Kedmi, J.]
3. I agree with the Vice Chief Justice's decision. In my opinion, the Equal Employment Opportunities Act, reflecting the equality principle, did not establish it ab initio. This principle has been and is fully recognized in our case-law [cites case-law]. Therefore, even if the contested benefit was claimed by respondent as from 1989, I would have decided in his favor. Nowadays, Israeli social norms are not unequivocally opposed to homosexuality. If they were unequivocally opposed to it, the Equal Employment Opportunities Act could possibly be interpreted differently, as suggested by Kedmi, J.
4. The equality principle does not operate in a vacuum. The notion of equality is nurtured by accepted social norms [cites English and Canadian cases].
5. In the past, homosexuality was stigmatized and even criminalized. Homosexuals lost their jobs, were not given employment in areas involving state security and were even barred from raising children. In the U.S.A., they were classified as psychotic and suffered from immigration-related restrictions [citing editorial excerpts from Harv.L.Rev.].
This attitude has gradually changed. Criminalization of homosexual behavior and discrimination of homosexuals have been criticized in the legal literature [citing R. Posner, Sex and Reason, 1992]. Movements demanding equality for homosexuals have been established. Evolving from the 1970s, the prevailing attitude of today is one of liberalism and tolerance. Sexual orientation is now regarded as a person's private matter. ... 6 - 8. [conducts a comparative survey substantiating the above normative and legal changes].
9. The Israeli law is no exception [refers to the changes in the Israeli Penal Code, according to which homosexual behavior is no longer a criminal offense if consensually conducted between adults; refers to different legal manifestations of the equality principle].
10. Homosexual and heterosexual spouses undoubtedly differ from each other. Yet, in order to justify their differentiated treatment, the difference between these spouses ought to be relevant to the purpose of the differentiating decision. For example, if the state is interested in promoting child-birth, homosexuals and heterosexuals may be treated differently [cites to Canada v. Mossop (1993) S.C.R. 554, 560].
11. The equality principle applies primarily to state authorities; and it also applies in employment, both public and private [cites case-law and an article by F. Raday, in Hebrew]. 12. In the present case, the employment benefit was not conferred by the relevant agreements exclusively upon the married spouses of El-Al's employees. This benefit is not intended to support a traditional family. It was conferred upon the employee covering his actual spouse. The latter's gender is therefore irrelevant to this benefit's purpose. Benefits of this kind are part and parcel of the employee's salary, as demonstrated by Professor Elbin (51 Ohio St. L.J. 1067 (1990)). In Israel, these and other benefits (known as "supplementary conditions") often multiply the basic salary. Therefore, to allow such benefits not to extend to homosexual spouses would discriminate against the employee himself. This was demonstrated by Professor Elbin [quotes from the above-mentioned article].
The same applies to our case. To deprive respondent of the disputed benefit would amount to
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an unjustifiable reduction of his salary.
For these reasons, I agree that this petition should be dismissed.
Dissenting Opinion of Justice Yaakov Kedmi:9
[The dissent focused on:]
(1) Agreement with Barak, J. that the collective agreement and arrangement confer the benefit on heterosexual couples only;
(2) Disagreement with Barak, J. that this amounts to an illegal discrimination: "... the very notion of 'couple' lies in the couple's ability to unite in carne uno, i.e., in its capability of procreation. To be a 'couple', the couple in question has to satisfy this basic condition.
Maintenance of a common household and a stable living- together relationship are not sufficient for becoming a 'couple'";
(3) The meaning of 'couple' should be revised only when society starts perceiving homosexual couples as equally capable of founding basic "social cells," alongside
(4) Until then - and considering the lack of social consensus surrounding this issue - "homosexual coupleness" should be ruled out as a legally available possibility;
(5) To distinguish between homosexual and heterosexual couples is therefore legitimate.
I would have allowed this petition.
Decided by the majority in accordance with the Vice Chief Justice Barak's opinion.
Delivered on November 30, 1994.
1. This judgment was translated from the Hebrew version by Alex Stein, Visiting Professor, University of Miami School of Law, 1994-95; Senior Lecturer, Law Faculty, Hebrew University. The summary translation at times abbreviates the opinion with bracketed "[....]" comments to facilitate the continuity and clarity of focus on the gay and lesbian issues in the case. Explanatory notes or comments provided by the translator are identified by "A.S." throughout.
2. A "collective arrangement" is an inchoate "collective agreement:" the "arrangement" would become an "agreement" once properly formalized. This labor law distinction had no significance in this case. A.S.
3.This provision is related to various restrictions imposed upon the capacity to marry by religious laws (which form part of the Israeli legal system). A.S.
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4. As it stood prior to its amendment by the collective arrangement. A.S.
5. i.e., as of the day on which this right-conferring amendment was legislated. A.S.
6. This petition sought judicial review, pursuant to the Israeli Supreme Court's jurisdiction. A.S.
7. This declaration is not part of the formal law, but is often invoked as an interpretive tool by the courts. A.S.
8. This passage is also translated from the Hebrew version. A.S.
9. Summary of highlights provided. A.S. ---------National Journal of Sexual Orientation Law, Volume 1--------- -------------------------------END PAGE 313---------------------------------
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