Johanna Westeson - The ICHRP

Knesset in 1998, declares as its purpose “to prohibit sexual harassment in order to protect
the right to respect, human dignity, liberty and privacy and to promote equality between
the sexes” (Art 1). In other words, here the issue of sexual harassment is framed primarily
as an injury to the right to human dignity and respect, in combination with an infringement
of the right to equality.
Article 3 of the law defines sexual harassment. The concept includes, inter alia, sexual
blackmail or threats; indecent acts; repeated propositions of a sexual character or
references with sexual connotations against the wishes of the person receiving them; and
intimidating or humiliating remarks concerning a person’s sex/gender, sexuality, or sexual
tendencies. If committed against persons of a dependent or subordinate status (minorparent/tutor,
patient-doctor, and employee-employer), remarks and propositions of a sexual
nature will be deemed sexual harassment even if the victim has not made known that
he/she is not interested. Furthermore, ‘prejudicial treatment’ is prohibited, defined as any
harmful act which originates in sexual harassment or complaints related to sexual
harassment. This is to be understood as intimidation or retaliation, which can occur
simultaneously to the harassment and before unwelcome sexual advances have been
rejected. 126
The law prohibits sexual harassment everywhere; it does not distinguish sexual harassment
in the workplace from sexual harassment in other – public or private – places (Art 4). It
defines sexual harassment both as a tort and as a criminal offense (Arts 5-6). The harasser
has personal liability – as opposed to employer liability, for example, when committed
between colleagues in a workplace – and can, thus, both be subjected to criminal law
punishment (Art 5), and civil law liability (Art 6). That said, the employer also has
extensive duties to prevent sexual harassment in the workplace and to deal with cases of
sexual harassment and adverse treatment when they have occurred (Arts 7-9 and 11).
Interestingly, and without precedent in Israeli law, the law provides for punitive damages
without damage having to be proved (Art 6(b)). What must be shown is only conduct that
the law has defined as harassment. 127 According to the explanatory note accompanying the
law, the damage “is often inflicted on the harassed person’s dignity, self-confidence, and
his right to respect and to a reasonable quality of life [...]. Since these injuries are inherent
in the nature of the harassing behavior, the proof of conduct embodies the proof of
damage.” 128 This, according to a commentary, is a way to protect ‘strong’ harassed persons
– even those who do not have emotional breakdowns following harassment – by insisting
that all harassed persons suffer injury to their dignity and self-worth and deserve the
protection of the law. 129
As seen, the objective behind the law was to combine the dignity paradigm with the
equality paradigm, and thus not to see those two approaches as mutually exclusive in
sexual harassment law. However, as one commentator has pointed out, Israeli courts have
favored the ‘dignity’ aspect over the ‘equality’ aspect, in the sense that the discriminatory
126 Orit Kamir, “Israel’s 1998 Sexual Harassment Law: Prohibiting Sexual Harassment, Sexual Stalking, and
Degradation Based on Sexual Orientation in the Workplace and in all Social Settings” (2005), 7 International
Journal of Discrimination and the Law, 315-336. Page numbers here from a separate pdf version of the
article, available at http://sitemaker.umich.edu/Orit_Kamir/files/sexharas2.pdf. Last visited on 15 April 2010.
Reference from p. 11.
127 Ibid, p. 13.
128 Quote from Kamir, p. 13.
129 Ibid, p. 14.
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