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RIGHTS OF PEOPLE WITH DISABILITIES
Israel’s Equal Rights for Persons with Disabilities Law, 5758-1998,305 (hereafter the Law) went into force on January 1, 1999. It provides for a statutory framework for the protection and equality of the rights of persons with disabilities. Subsidiary legislation was issued in accordance with the Law, including regulations providing protection of minimum pay, regulations providing preference in assignment of parking at the workplace, etc.
However, the rights of persons with disabilities were recognized by statutory law, as well as by Israeli courts, even before the enactment of the Law. For example, special provisions were introduced in the Amendment of Election Law (Polling Place) 5750-1990,306 which imposed on every local authority the duty to provide at least one polling station with suitable access for disabled persons in any geographical area with over 20,000 residents.307
In interpreting the law, Israeli courts have been guided by the 1999 Law, other provisions in various laws, as well as by general principles of the legal system, particularly those enumerated in the Basic Law: Human Dignity and Freedom.308
A person with disabilities is defined by the Law as a person with a permanent or temporary disability, either physical, mental, or intellectual, which substantially affects his/her functioning in one or more principal areas of life.309 The Law declares the following as a basic principle:
The rights of persons with disabilities and the commitment of the society in Israel to these rights are based on the recognition of the principle of equality, recognition of the value of the human being who was created in the image and the principle of respect to human beings.
The Law sets as its goal the protection of the dignity and freedom of a person with disabilities, the ensuring of his/her right to equal and active participation in society in all areas of life, and the provision of proper response to his/her special needs in a way that enables him/her to live with maximum independence, privacy, and respect, while utilizing his/her utmost ability.310 The Law declares that a person with disabilities is entitled to receive decisions related to his/her life, in accordance with his/her will and preferences, subject to law.
The Law further specifies that an action designed to correct prior or present discrimination against persons with disabilities or to promote their equality is not illegal discrimination.311
Equal Rights Commission for Persons with Disabilities
The Law establishes a Special Commission for Equal Rights for Persons with Disabilities. The Commission should act:
- to further the basic principles of the law
- to further equality and to prevent discrimination
- to further the incorporation and active participation of persons with disabilities in society
- to fulfill other tasks imposed by the law
The government, in consultation with the Minister of Justice and the Minister of Labor and Welfare, will appoint a commissioner for equal rights for persons with disabilities. An advisory committee shall be appointed to the commission. The committee shall include persons with different disabilities (or their representatives), experts in the areas of activity of the commission, lawyers and public representatives. The majority of the members in the committee shall be persons with disabilities. The commissioner should consult with the committee in areas related to the work of the commission.
The Law imposes certain requirements in the area of the employment of persons with disabilities. The requirements differ according to the size of the business and the burden imposed on the employer by compliance.
A. Illegal Discrimination
An employer is prohibited from discriminating among his/her workers or employment seekers, as long as they qualified for the job. Discrimination is prohibited in the following areas:
- admission for employment, including admission tests and setting irrelevant conditions
- employment conditions
- employment promotion
- training or professional advancement
- severance and severance pay
- benefits and retirement compensation
An action or an omission mandated by the substantial requirements of the job is not regarded as prohibited discrimination.312
B. Special Accommodations
An employer is required to provide accommodations for the employment of persons with disabilities. These include workplace and equipment accommodations, job requirements, hours of work, employment admission tests, training and work procedures. Accommodations are required, however, only as long as the adjustments shall not impose on the employer an excessive burden. To be considered excessive, circumstances include, among others, the cost of the adjustment and its nature, the size of the business and its structure, the scope of activities, the size and composition of the labor force, and the existence of exterior or national financing resources for carrying out the adjustment.
C. Proper Representation for People with Disabilities in the Workforce
The Law imposes a special representation requirement on employers who employ more than 25 employees. Accordingly, an employer is under an obligation to act as proper representation of people with disabilities if they are not adequately represented among employees at the workplace. The employer’s actions may include the preparation of a program that will provide for preference for the employment and advancement of people with disabilities who have similar qualifications for the job or position.313
The Law authorizes the Minister of Labor and Welfare to determine additional provisions for either a specific case or type of cases, the severity of disability of persons to be employed or promoted, etc. In addition, the Minister may also impose reporting requirements on employers.
The State and other public bodies specified by law are subject to a similar requirement under the State Service (Appointments) Law, 5719-1959, as amended.314 This Law guarantees proper representation in all levels and professions in each office, of persons of both genders, of persons with disabilities, and of members of the Arab population, including Druze and Carcase. The Law provides detailed requirements associated with guaranteeing proper representation in the workforce of the above groups.
D. Judicial Interpretation
A December 2001 decision of the regional labor court in Jerusalem analyzes the Law's provisions prohibiting discrimination in employment and requiring proper representation of people with disabilities in the workplace.315 The issue centered over the legality of the termination of employment of a person who became disabled as a consequence of contracting polio. The Court held that the requirement imposed on an employer to act to advance proper representation of persons with disabilities in his/her business by way of affirmative action applies to both the admission into work and to the severance of employment. The meaning of proper representation at the termination of employment is that the employer must consider the disabilities of a person when deciding whom to fire, especially when the termination does not derive from the employee’s behavior but from the organizational need of the employer. The Court further held that the employer’s duty to not discriminate, to provide for special accommodations, and to act towards proper representation of persons with disabilities at his/her workplace, does not mean that he/she must forever employ an employee with disabilities, even if his/her suitability and qualifications are greatly inferior to other candidates who do not have disabilities and even if there are additional substantive considerations against his/her employment. Rather, the employer’s duty means that he/she must consider the disability of the employee favorably. This duty also derives from the generally recognized requirement to consider the personal circumstances of employees at a time of reduction in force. Since the respondent in the case admitted that it did not consider the requester’s disability in considering the termination of his employment, it did not comply with the requirements of the Law and the termination was therefore void.
The Minister of Labor and Welfare is responsible for implementation and is authorized to issue implementing regulations regarding the nature of accommodations necessitated by the Law. Regulations should be passed after consultation with the Equal Rights Commission for Persons with Disabilities and relevant organizations promoting their rights.
The Law specifically instructs the Minister of Labor and Welfare, in consultation with the Minister of the Interior, to pass regulations to provide preference to persons with disabilities in the assignment of parking in workplaces. The Law requires that regulations regarding accommodations and parking should be made in consultation with representatives of organizations of both employees and employers. Accordingly, Equal Rights for Persons with Disabilities (preference in parking space in the workplace) 5752-2001was issued on October 25, 2001.
The Law further instructs the Minister of Labor and Welfare, together with the Minister of the Treasury, to determine, according to regulations, the financial contribution required from employers for accommodations for persons with disabilities.
B. Special Programs
The law instructs the Minister of Labor and Welfare to prepare programs for:
- employment and rehabilitation of persons with disabilities while giving preference to their absorption in regular workplaces;
- establishment of a suitable employment and professional review for guaranteeing the absorption of persons with disabilities into the workplace;
- provision of professional counseling and guidance to employers and employees on the absorption of persons with disabilities in the work force; and
- providing a yearly report on programs prepared in accordance with this requirement to the Knesset (Parliamentary) Commission for Labor and Welfare.316
Complaints under the law may be lodged by employees or, with the consent of the employees, by unions, agencies, or organizations dealing with promoting the rights of persons with disabilities.
Labor courts have exclusive jurisdiction to hear proceedings involving violation of the Law, impose compensation, and issue injunctions as necessary. In addition to civil remedies, the courts may convict persons found in violation of the Prohibition on Discrimination and Retaliation and may impose fines as listed in the Penal Law, 5737-1977.317
The Law prohibits retaliation against an employee for issuing or assisting in a complaint or a law suit under the Law except if performed with malice and knowledge that the complaint is false.318
The Law declares that a person with disabilities is entitled to public transportation services that are accessible and suitable for his/her use, in a reasonable frequency, including access to stations and ports from which public transportation is provided. Public transportation includes buses in municipal routes, trains, and air and sea transportation designated for the public. The Law authorizes the Minister of Transportation and the Minister of the Treasury to pass regulations for the implementation of the requirement for accessibility. Violation of the requirement to provide suitable public transportation may result in a fine.319
Public Accommodations and Services by Private Entities
As described above, the law requires employers to provide special accommodations to persons with disabilities, including workplace and equipment accommodations, reasonable in the circumstances.
In addition, the law imposes a duty on those providing services to the general public to also provide persons with disabilities, while recognizing their human dignity and freedom and protecting their privacy. While services provided by non-public bodies must include “the adjustments required in the relevant circumstances,” services provided by public bodies are required to be “in a proper quality, reasonable time and distance from the person’s residence, and all within financial resources allocated to the public body.” Public bodies subject to the latter requirements include government ministries, local authorities, corporations, governmental companies, or other publicly audited bodies.320
Special accommodations are also required from builders of public buildings. Planning and Buildings Construction (Request for Permit, Conditions and Fees) 5730-1970,321 as amended, defines public buildings as buildings or parts thereof, designed for the following objectives: entertainment, retirement homes, public gatherings, hospitals and clinics, accredited higher and adult education, museums, fields or locations designed for sports events, stores, including supermarkets exceeding certain cubic footage, air, sea, train and bus terminals. Other types of public buildings include buildings designed for post offices, religious centers, hotels, pools, restaurants serving more than 25 guests, etc. Thus, public buildings covered by the regulations may include those owned by private entities but providing public service.
Among the accommodations requirements imposed by the regulations is the building in public buildings of special access, entry doors, internal doors, passages, elevators, water fountains, etc., specifically for the benefit of persons with disabilities.
Although the law does not specifically require suitable telecommunications services to persons with disabilities, such a requirement exists based on the general requirement on providers of public services to provide such persons with the appropriate level of service subject to necessary adjustments.
On January 1, 1999, the Equal Rights for Persons with Disabilities Law of 1998 (“1998 Act”) went into effect, expanding a prior general statutory framework which recognized disabled persons’ basic rights to enjoy constitutional freedoms and privileges as citizens which, among other, assured barrier-free access to polling places. The amendment mandates that specific issues are addressed through supplementary regulations. To date, several such regulations have been promulgated, spanning from guarantee of minimum pay to preferential assignment of parking spaces at the place of employment. The new statute and implementing regulations create a framework of protection very similar to that afforded under the Americans with Disabilities Act and the Rehabilitation Act.
Scope of Coverage
The 1998 Act coverage is all-inclusive and appears modeled after the ADA:
1. Definition of disability
2. Commission for Equal Rights of Persons with disabilities
3. Advisory Committee
5. Public accommodations
- reasonable accommodations in the work place
- employer programs of affirmative actions
- principle of proper representation within the workforce through: diversity and quotas in public employment
6. Removal of barriers
- access to public transportation
- access to public buildings
- building code requirement for private and public sectors
The 1998 Act and supplemental regulations are civil rights legislation with a primary purpose of protection of equality and human dignity of persons with disabilities through:
- integration and enabling to participate actively in all areas of societal life;
- prohibiting disparate treatment based on disability;
- specifically allowing for affirmative corrective actions to remedy prior or present discrimination based on disability; and
- advancing the basic principles through appropriate public policies.
Public Policy Implementation
The 1998 Act establishes the Commission for Equal Rights for Persons with Disabilities and a Special Advisory Committee. The Commission and Committee are tasked:
- to supervise the implementation of general public policy and government regulations;
- to promote equality through prevention of discrimination; and
- to promote opportunities for people with disabilities to participate actively in society.
Enforcement and Remedies
The Labor Courts have jurisdiction to hear complaints by a disabled person alleging a violation of the 1998 Act. The courts may grant:
- injunctive relief;
- compensatory damages; and
- criminal penalties for violation of the prohibition of discrimination and retaliation.
The following affirmative defenses are available:
- the grieved disparate treatment constitutes an affirmative action to correct prior or present discrimination;
- the requested accommodation is too costly, almost impossible, or unreasonably burdensome; and
- the disabled applicant /employee lacks the necessary qualifications for the desired position.
305 SEFER HA-HUKIM [Book of Laws, Official Gazette] issue 1658, at 152 (5758-1998).
306 SEFER HA-HUKIM 1322, at 162 (5750-1990).
307 For an analysis of the law see Avretz et. al. v. Election Officer for the Mayorship of Jerusalem et. al., 52(5) Piske Din [Decisions of the Supreme Court , hereafter PD] 323 (5758-1998).
308 SEFER HA- HUKIM, issue 1391, at 159 (5752-1992).
309 Supra note 1, §5.
314 §15a, 13 LAWS OF THE STATE OF ISRAEL (hereafter LSI), 64 (5719-1958/59).
315 Blilati v. Jerusalem Post Publications Ltd., Takdin- Avoda33 (2001), available on Takdin-Juridisc, Legal Database.
317 LSI Special Volume (5737-1977).
321 Kovetz Hatakanot at 1841(5730-1970).