MK Touma-Sliman, Adalah petition Israeli Supreme Court against new emergency regulations that let employers dismiss pregnant women

14/04/2020

Employers no longer need special permit from Labor Ministry to put pregnant women or women on maternity leave on unpaid leave; emergency regulations disproportionately violate constitutional rights, were approved by Israeli government without legal authority.

Adalah – The Legal Center for Arab Minority Rights in Israel, on behalf MK Aida Touma-Sliman (Joint List), filed an urgent petition to the Israeli Supreme Court on 12 April 2020 against new “emergency regulations” that allow employers to put pregnant women, women undergoing fertility treatments, and women on maternity leave and 60 days after their return to work, on unpaid leave without first obtaining a special permit from Israel’s Labor Ministry.

The Coronavirus (Women’s Work) - 2020 “emergency regulations” were approved last week, 6 April 2020.

These regulations illegally trump the Employment of Women Law – 1954 and apply during the period of the coronavirus. The Employment of Women Law prohibits the dismissal of pregnant workers, and discharge shortly after the female employee has given birth is also restricted unless employers obtain a special permit from the Labor Ministry. The ministry may provide this permit following a hearing in which the woman is legally represented. Women also have the right to appeal to the labor courts if they see themselves harmed by the permit.

Immediately after filing the petition, the Israeli Supreme Court set a hearing on Monday 20 April 2020 and ordered the state to provide a response 24 hours before the hearing

In the petition, Adalah Attorney Sawsan Zaher asked the Supreme Court to issue a temporary injunction freezing the implementation of the regulations and to hold an immediate hearing, as they may lead to the dismissal of thousands of women from their workplaces. The petitioners argued that there are alternatives to these emergency regulations that properly balance the needs of employers and the rights of women. These regulations disproportionately violate women’s constitutional rights to due process and access to the courts, as it will prevent women who are abroad from the right to a hearing, as well as the right to equality and dignity, as they discriminate against women based on their gender.

The petition also emphasizes that the government acted unlawfully in approving these emergency regulations, as Section 39 (d) of the Basic Law: The Government provides that: “Emergency regulations may not prevent recourse to legal action, or prescribe retroactive punishment or allow infringement upon human dignity.” Further, the petitioners argued that the government lacks legal authority to approve emergency regulations; there is a need for primary legislation, especially in light of the convening of the 23rd Knesset and the establishment of relevant committees, including the Knesset’s Special Committee on Welfare and Labor Affairs, chaired by MK Touma-Sliman. This position is also reinforced by the attorney general's opinion. In a letter to Israeli Prime Minister Benjamin Netanyahu in early April 2020, the attorney general called for an end to the continuous decree of emergency coronavirus regulations.

Adalah to Supreme Court: Stop coronavirus ‘emergency regulations’

This petition marks the fourth case brought by Adalah before the Israeli SCT challenging the government's authority to decree emergency regulations. These petitions include the cases against cellphone surveillance by the Shin Bet and the police; the prohibition on prisoners’ meetings with their lawyers and families; and a principle case, submitted with Joint List against the continuous approval of emergency regulations as such.

Later this week on Thursday 16 April 2020, the Supreme Court will hold a second hearing in the case involving the invasive surveillance practices of tracking and monitoring of citizens – both coronavirus patients and the location of persons who were in the vicinity of individuals with a positive lab result for the virus. (HCJ 2141/20, Adalah and the Joint List v. The Prime Minister, et. al (joined with HCJ 2190/20, Adv. Shahar Ben Meir v. Knesset; HCJ 2135/20, The Association for Civil Rights in Israel v. Prime Minister, and HCJ 2187/20 The Journalists’ Union in Israel v. Prime Minister). Adalah responded favorably to the state's request to allow representatives of various ministries to appear in the hearing, provided that MK Ayman Odeh, the chairman of the Joint List that petitioned with Adalah against the regulations, also be provided with an opportunity to speak for 10-15 minutes before the court on the impact of the regulations and Palestinian citizens of Israel.

Regarding the current case, MK Aida Touma-Sliman stated:

“In times of emergency and epidemic, people are injured, and the state has a duty to provide protection and a health and economic safety net. It is inconceivable that, in the name of the emergency, laws aimed at protecting citizens – particularly women – are being eradicated. Women are being discriminated against in the job market in ordinary days and every day of the week during these difficult days. In its decision on these Emergency Regulations, the government ignores the women members of the public, even more than the legislator, the Knesset, which should discuss and decide on the issue.”

Adalah Attorney Sawsan Zaher commented that:

“These regulations are not only improper and result in unreasonable and unjustifiable harm to women, but have also been decreed without authority, which contradicts the principle of the separation of powers. From the beginning of the coronavirus crisis, we were alerted to the dangers of giving the government authority to do whatever it wants to do without the legislature’s control. These regulations abolish the protection afforded to pregnant working women and amount to gender discrimination without justification. The Supreme Court must immediately stop this damage, as the livelihood of thousands of women will be harmed, without any possibility of even challenging it.”

Case Citation: HCJ 2486/20 MK Aida Touma Suleiman and Adalah v. The Prime Minister (case pending)

CLICK HERE to read the petition [Hebrew]