Dei'ah veDibur - Information & Insight

A Window into the Chareidi World

29 Sivan 5761 - June 20, 2001 | Mordecai Plaut, director Published Weekly







Religious Discrimination

by Betzalel Kahn

Over the last few years many people have been fired from their jobs, mainly in the public service sector, due to their refusal to work on Shabbos. The workers were not always able to win their case, and in many instances were forced to leave their jobs ? The Haifa district labor court recently issued heavy fines to a restaurant chain for employing workers on Shabbos in violation of the Work and Rest Hours law ? Although the general courts are not enforcing the Work and Rest Hours law, and allow businesses time and time again to keep their establishments open on Shabbos, the labor courts, interestingly enough are adopting the stand of the workers.

An unprecedented ruling was issued lately by the Israeli Labor Court which determined that it is forbidden to discriminate against a person for religious reasons according to the Law of Equal Employment Opportunity. This ruling has not received wide publicity despite dozens of similar cases.

Efraim Oved, a frum engineer appealed to the Labor Court after losing a job offer at a high-tech firm due to his refusal to work on Shabbos. Judge Ilan Sofer ruled that the obligation of employers not to discriminate between job applicants means that they must set the conditions of acceptance that do not take into account the applicants' religion or beliefs.

According to news reports, Efraim Oved was laid off from his old job two years ago due to cutbacks, after having worked there for two years. When he applied to work for Intel in Kiryat Gat, they asked him whether he would be willing to work on Shabbos. Oved replied that he was shomer Shabbos. After a written exam and an interview, both of which he passed successfully, Oved was informed that he did not get the job.

Ha'aretz reported that Oved was similarly rejected by other firms, including Lan Research, for his unwillingness to work on Shabbos. The company ignored his plea to reconsider his application despite his claim that this was a violation of the law as most of the companies he had applied to were not authorized to work on Shabbos anyway.

Efraim Oved sued the company for NIS 30,000. Judge Sofer ruled in favor of Oved saying that the law had established Shabbos as the Jewish day of rest, and therefore, this should not act as an obstacle to any Jew, whether secular and religious, when applying for a job.

This is not the first time an observant Jew was discriminated against due to refusal to work on Shabbos. This is a serious problem that has as yet not been solved in an orderly manner through normal legal channels. As a rule, with civil servants in the defense or internal security areas, the state pleads pikuach nefesh when advocating work on Shabbos. In the private sector, however, any business or factory owner can do as he pleases.

The Precedents were not Favorable

The courts have dealt with this problem many times in the past, and not always does the religious employee come out ahead. Meir Zorei'a worked for the Jerusalem police force until four and a half years ago. When on duty during Shabbos shifts, Zorei'a was forced to record complaints in writing, even when the circumstances were not an emergency or pikuach nefesh, such as thefts or car damages. In his appeal to the High Court, Zorei'a's lawyer, Naftali Wertzberger, contended that Zorei'a was forced to violate the Shabbos unnecessarily.

When Zorei'a began working for the police force seven years ago, his job was fraud investigator for the Jerusalem district. In the course of his job he came up against various problems when working the Shabbos shift. Among others was the fact that he had to write up reports that were not urgent.

Zorei'a spoke to then Jerusalem district police rabbi, Rav Moshe Turetsky, asking what he should do and was told that there was no hetter to write on Shabbos. He then took his complaint to then deputy commander of the Jerusalem district, Miki Levy. Levy outlined the options open to him: either change his job within the department to traffic cop, patrolman, sentry, or jail warden, or keep his present job of investigator and continue violating the Shabbos, or quit.

Zorei'a appealed to the High Court, arguing that changing to one of the lesser jobs as Levy had suggested amounted to nothing less than being penalized for his faith, not to mention that it forever foreclosed his advancement within the department. The High Court issued a conditional order obligating the police department to reply, within 21 days, with the reasons it had for not keeping its operations on Shabbos and festivals within the parameters of halochoh.

The police department presented its answer to the High Court a full year after the conditional order was issued. The police representatives asked then police department rabbi, Rav Shlomo Neiman, for a halachic opinion on the matter. Rav Neiman, in a statement which went against the position of the police and supported Zorei'a's case, wrote that the party deciding the nature of Shabbos operations should be the police rabbi and not headquarters. As for Zorei'a, he should not be compelled to violate the Shabbos.

The police cunningly hid this information from the High Court judges, and instead of Rav Neiman's opinion they brought that of the rabbi of the Jerusalem district police who, they claimed, had a different view of the matter. As it turned out, the police representatives based their case on a past conversation with the district rabbi which was not representative; they had not asked Rav Turetsky to prepare a formal opinion. As a result, the High Court was misguided in the fundamental issue of chilul Shabbos of police officers.

The police legal counsel brought the view of Jerusalem district rabbi, presenting it as follows to the Court: "The police rabbi made known to the appellant that as rabbi he is not in the position to decide which work is necessary for security or operational considerations, and therefore this is up to the discretion of the commanders." They went on to say that Zorei'a had already been told verbally by the rabbi that he was not in the position to determine what constitutes security work.

This, not surprisingly, resulted in the High Court's ruling unequivocally in favor of the police, based on Rav Turetsky's oral "opinion" which was presented as that of the entire police department rabbinate. The High Court was faced with an issue of fundamental human rights and equal employment opportunity, and as a result of the misrepresentation on the part of the police department the judges ruled unequivocally in their favor, since the police rabbi said that he was unable to determine what constituted security work.

The issue was brought up for discussion in the Knesset, after being publicized in Yated Ne'eman. Chareidi MPs argued bitterly with then- Minister of Interior Security Avigdor Kahalani, but in the end Zorei'a left his job and the matter was dropped.

In the Israeli Prison Guard System

A similar story occurred with Sergeant (res.) Yonah Cohen. About seven years ago Cohen became a ba'al teshuva. He had served eight years in the police force until then, and served four more until he left three years ago. He had a spotless record, that is, until he became frum and asked his superiors to be exempt from the Shabbos shift in the Kishon prison where he worked.

Ever since then the attitude toward him changed from one extreme to the other. His request was immediately denied, even though out of 100 police officers at the prison, only two were religious which means that the service rotation could easily have been arranged to free Cohen on Shabbos.

Cohen turned overnight from the "golden boy" to the "whipping boy." He was the victim of a series of schemes meant to incriminate him to the point where he was accused of smuggling things in to the prisoners. Cohen was tried in court and completely acquitted. He was tested using a lie detector, and this too, showed to his irrefutable innocence. Nevertheless, he was a marked man, and his commanders tried every way to get rid of him and have him moved elsewhere.

A few years ago he was transferred to the police station in Tiveria and from there to the police station in Natzrat. His request not to work on Shabbos was honored and he was given a job in the Afula area as the person in charge of security patrol of educational institutions, which obviously are open only on weekdays. But later, when Cohen was transferred back to Natzrat he was again forced to work Shabbos shifts. His petition not to work Shabbos was turned down and his commander wrote in his file: "The officer does not work Friday night or Shabbos since he is a chozer beteshuva and therefore he is not suited for his job."

After refusing to work on Shabbos, and as a result of infighting between local and regional police commanders regarding his case, Yonah Cohen was dismissed from his job without the right to appeal. Cohen's father, who is not a religious man but respects Jewish tradition, said at the time to Yated Ne'eman that his son was harassed because he had become frum. "It is hard for me to say it, but as a person who went through the Holocaust and the war, this brings me back to those days, when we were persecuted for being Jews," he said.

Forcing people to work on Shabbos is not new to the State. At one time traditional Jews from Georgia, Russia, who worked as porters at the airport, had to work on Shabbos, otherwise they would lose their jobs. A great hue and cry ensued until it was stopped.

That was about 25 years ago; today there are no more porters at the airport and therefore this problem no longer exists, but there are still factories and other workplaces that accept employees on the basis of their willingness to work on Shabbos. All over the world, including the United States, this discriminatory practice has been abolished, and yet here in Eretz Yisroel it continues until today.

Aside from the law that mandates equal employment opportunity, there is also the Work and Rest Hours Law which says that Jewish workers must not work on Shabbos.

On the one hand many businesses that are open on Shabbos require their employees to work all week. On the other hand, those who are not willing to work on Shabbos often have a hard time finding a job.

A few months ago the senior judge at the district Labor Court in Haifa, Rami Levy, imposed heavy fines on two firms for employing workers on Shabbos. The Aloniel firm, which operates the McDonald's fast food chain here in Israel, had to pay a fine of NIS 30,000 and an additional NIS 50,000 was imposed on the owner of the franchise, Omri Padan. The state representative, attorney Ravit Tzaddik, accused the firm of illegally employing teenagers in 1997 at the Lev Hamifratz mall and the Canyon Hachadash in Haifa. The firm made every effort to push off proceedings and was successful for a long time, but in the end, Judge Levy ruled last month that they must pay the fines.

In a different ruling at the Tel Aviv court, Judge Rami Levy imposed a NIS 55,000 fine on the Handyman firm for employing Jewish workers on Shabbos. Levy found that it was clear from the testimony of the workers that employees understood that working on Shabbos was a condition of their employment, and that they were not able to refuse working on Shabbos. When giving his ruling Levy wrote: "The basic purpose of this law . . . is that a worker should not be forced to give up his protected rights. The need to prevent any unfair advantage between employers, that is between those who uphold the law and those who break it, requires the imposition of a penalty appropriate to the protected interest, whose establishment as an offense the law comes to protect."

The Ministry of Labor and Welfare expressed their satisfaction at these two rulings issued by Judge Levy. "It was proven that the ones to suffer most from working on Shabbos are the employees themselves, who would much rather spend the day of rest with their families, but who are compelled to work against their will," a spokesman said.

McDonald's was fined for employing workers on Shabbos. The international fast food chain, which operates several stores throughout the country all week long including Shabbos (instigating the demonstration last month at the entrance to Beit Shemesh), employs many teenagers. Many complaints were launched over the years against the chain for employing youngsters for low wages. These teenagers, who want to make some extra money, are tempted to accept any job offer, including serving fast food at this treif food chain. They earn minimum wage and have to work on Shabbos.

Other Employment Problems

There are other aspects, aside from Shabbos observance, where terms of employment may conflict with a religious person's convictions and requirements.

Yisrael Bermi, a religious driving examiner who works at the Licensing Bureau in Kiryat Chaim, unwittingly became the center of a controversial issue of public concern three years ago. It all started when he refused to test a driving student who came improperly dressed. Bermi went to the student's driving teacher and explained to him that it went against his principles to test a student dressed in such immodest attire. "I cannot respect a person who has no respect for her surroundings," he said and went on to explain to the driving teacher that a student must come properly dressed for the test.

A heated argument between the driving teacher and the examiner ensued, and this quickly made its way to the media which seized the opportunity to slam the "religious coercion at the licensing bureau." Bermi would not be deterred and held his ground. "It goes against my conscience," he explained to the heads of the examination staff and of the local licensing bureau. In the end the student was tested by a different examiner.

The media continued to fan the flames of the issue and ran to get a quote from then Minister of Transportation, Nachum Langental, on the matter. Langental, who is religious himself, spoke out against the examiner and said that he had acted on his own "against express instructions which obligate him to test all people." Langental added that "he cannot act as judge, and if this doesn't suit him he doesn't have to work for the Ministry of Transportation." He went as far as to declare that the examiner would be subject to disciplinary measures from the Ministry. The newspapers reported that Langental said the solution to the examiner's problem would be to "transfer him to the chareidi or Arabic sectors. There he won't encounter the type of problems that he came up against in Kiryat Chaim."

But contrary to the opinion of the Minister of Transportation and the media, the Haifa Histadrut labor union surprised everyone by supporting Bermi. Haifa area Histadrut Chairman Baruch Zaltz told Yated reporter Arye Zisman that in his opinion the examiner should be praised for his courage to disqualify himself from testing the student. "It is probable that as a result of his anger at the student, he would have marked her very strictly and failed her. Therefore, what he did was an act of integrity, and he should be praised, not punished," he said.

In the past the Histadrut in Haifa protected its members who were compelled to work on Shabbos "contrary to their conscience and faith." This happened when a worker at one of the factories in the north, that works round the clock and on Shabbos, became newly observant. The worker requested to be exempt from the Shabbos shift, but his employer maintained that the worker had been hired on the assumption that he would work on Shabbos and therefore, could not be expected to change his work schedule. The Histadrut came to the defense of the worker, explaining that his newly- observant status must be respected. As a result the employer ceded to the request and enabled the worker to keep his job without having to be mechalel Shabbos.

The Ministry of Labor and Welfare is responsible for the rights of laborers in Israel. All the cases mentioned above were brought to the attention of this office, which for some reason does not have a department dealing specifically with the rights of religious workers. The office lacks any special procedures for the rights of the religious worker, just as there are no specific rules and regulations for other sectors of society. There are various subjects connected to kashrus, and the like which touch upon religious issues. But there is still no separate set of rules for the religious worker, in spite of the fact that the ministry has been in religious hands for several years.

On the other hand, there is the Work and Rest Hours Law (that bans work on Shabbos), according to which the ministry operates, at times successfully and other times without success.

In spite of the fact that the State does not deal with the religious issue, as described above, in certain situations it is able to intervene for the good of the laborer, especially when dealing with government institutions which refuse to employ someone on the basis of his unwillingness to work on Shabbos.

The main problem lies in the private sector. Unfortunately the Ministry of Labor and Welfare is not always able to enforce the law in the case of private employers. Only the intervention of the Labor Courts has occasionally led to a reduction of this shameful practice.


U.S. Orthodox Man Wins $100,000 in Discrimination Suit

A U.S. federal jury recently awarded $100,000 to a former BellSouth employee who was fired months after he became a practicing Orthodox Jew. Jurors found that BellSouth illegally fired Jeffrey Bander after he filed an Equal Employment Opportunity Commission discrimination claim.

BellSouth claimed that Bander was fired because he didn't follow proper procedures for taking time off. The company said it was considering an appeal.

A supervisor learned Bander was Jewish in January 1998 when his oldest son was killed by a drunk driver. Bander grew a beard as part of his aveilus, began wearing a yarmulke and keeping kosher.

Three months later, supervisor Tony Johnston told Bander to "lose the beard and you better not wear a yarmulke because the customers won't like that," according to the lawsuit.

Another time, the suit alleged, Johnston told Bander, "I don't think we can work together anymore. You people think you're different from us. You think you're better."

Bander was fired from his $106,000-a-year job as a sales representative and manager for BellSouth's yellow pages in February 1999. He had worked seven years for the Atlanta- based communications company in central Florida.

Jewish groups have lobbied for years in favor of religious freedom in the workplace, but changes proposed to federal law to strengthen religious accommodation at work never seem to get very far in Congress. Bander's case shows that workplace discrimination is an issue that must be addressed, these groups say.

Under the Civil Rights Act, employers are required to "reasonably accommodate" an employee's religious practice or observance unless doing so would constitute an "undue" hardship. But supporters of religious freedom say the courts never properly interpreted the law, and employers have not faced any meaningful obligation to accommodate their workers' religious practices.

The Workplace Religious Freedom Act, introduced last year by Rep. Jerrold Nadler (D-N.Y.) and Rep. Asa Hutchinson (R- Ariz.), seeks to clarify the concept of undue hardship by defining it as "significant difficulty or expense." The bill was referred to committee, but was never brought to a vote.

The U.S. Supreme Court declared unconstitutional a previous attempt to protect religious freedoms. Unlike that law, the proposed WRFA only addresses religious freedom in the workplace.

The legislation would accomplish two things, according to David Zwiebel, the executive vice president for government and public affairs for Agudath Israel of America.

One would be to make the law more effective by making it more difficult for employers to deny a worker's religious observance. The other is to create a climate that makes employers understand that they must accommodate religious differences.

Nathan Diament, director of the Orthodox Union's Institute for Public Affairs, said discrimination cases "crop up on a regular basis." Diament said the O.U. is actively talking to House and Senate offices to build support for an attempt to pass legislation based on Nadler's bill.

Nadler plans to reintroduce the bill this session, according to his press secretary, Eric Schmeltzer. Schmeltzer rates its chances of passing as only 50-50, however, as the issue could again die in committee unless it becomes a congressional priority.


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