Procedural Posture
The respondent applied to the Regional Labour Court for a declaration that the employment benefits that he received for his male partner should be the same as those received by his colleagues who had opposite-sex spouses or companions. The Regional Labour Court held that, in refusing to confer the same benefits on same-sex couples, the employment benefit scheme had been discriminatory under Section 2 of the Equal Employment Opportunities Law, 1988, which, under a 1992 amendment, prohibited discrimination on the basis of sexual orientation. The respondent’s employer, El-Al Israel Airlines, had its appeal to the National Labour Court dismissed on the basis of the same law and the respondent was found to have a right to demand the benefit that he and his partner had been denied. El-Al then petitioned the Supreme Court sitting as the High Court of Justice.
Facts
The respondent was a flight attendant for the petitioner, El-Al Israel Airlines. Under a collective agreement, permanent employees and their “spouses” were entitled to receive a free or discounted ticket annually. Under an alternative arrangement, a ticket could also be given to “a companion recognized as the husband/wife of an employee of the company if the couple live together in a joint household as husband and wife in every respect, but they are unable to marry lawfully”. The respondent applied to have his male partner recognised as his ‘companion’, in order to receive the benefit. The respondent and his partner were in a committed long-term same-sex relationship, in which they ran a joint household in a jointly owned apartment. El-Al declined the request.
Issue
Whether denial of a benefit to the same-sex partner of an employee was discriminatory when that benefit was given to opposite sex-partners and spouses.
Domestic Law
Basic Law: Human Dignity and Liberty, 5752-1992, Sections 7 and 8.
Equal Employment Opportunity Law (Amendment), 5752-1992.
Equal Employment Opportunity Law, 5748-1988, Sections 2, 2(a), and 2(c).
Comparative Law
Braschi v. Stahl Associates, New York Court of Appeals, 544 N.Y. Supp. 2d 784 (1989) (finding same-sex partner to have occupancy rights following death of tenant; adopting functional test).
Vriend v. Alberta, Alberta Court of Queen’s Bench, 1994 (holding that sexual orientation was a ground analogous to those listed in section 15(1) of the Canadian Charter of Rights and Freedoms).
Egan v. Canada, Federal Court of Appeal of Canada, 1993 (holding sexual orientation to be analogous ground under the Canadian Charter).
International Law
Modinos v. Cyprus, ECtHR, 1993 (finding that sodomy laws of Cyprus violated the right to privacy under the European Convention).
Norris v. Ireland, ECtHR, 1988 (finding that sodomy laws of Ireland violated the right to privacy under the European Convention).
Reasoning of the Court
Majority Opinion (per Vice-President Barak)
The Court held that El-Al’s refusal to provide an airline ticket to the respondent’s same-sex partner was discriminatory, because the Airline was making an unjustifiable distinction on the basis of sexual orientation. The respondent and his partner had a right to the benefit of a ticket. This right was derived from the respondent’s contractual entitlement to receive a ticket, as an employee benefit, for either a “spouse” or “recognized partner”, in combination with the prohibition of discrimination on sexual orientation grounds under the 1992 Employment Equal Opportunity Law (Amendment). The respondent’s right to equal treatment had accrued from the date on which the amendment had been enacted into law.
The Court reached its decision after reviewing Israeli law with regard to the right to equality and, more specifically, discrimination on grounds of sexual orientation. The Court held that equality was a fundamental value of Israeli law. The principle of equality was entrenched through both case law and legislation. It was established in case law that recognition of the right to equality was a human right in Israel. In terms of legislation, equality was enshrined in numerous statutes and culminated in the Basic Law: Human Dignity and Liberty, which provided that equality was a constitutional right. The Court noted that the right to equality was not absolute; it had to be balanced against other rights and could be lawfully restricted if the justification for doing so was sufficient. In the respondent’s case, however, the Court could find no justification for the discrimination and it noted that there was “nothing characterizing the nature of the job or the position that justifies unequal treatment”.
The Court held that the mere fact that the respondent was in a same-sex rather than a heterosexual cohabiting relationship did not justify differential or discriminatory treatment. El-Al’s employment benefit scheme was focused on a single goal. It was designed to provide an airline ticket as a benefit that would enable an employee to take a trip with his or her cohabiting partner. The benefit was designed to apply to partners whose relationship consisted of “a firm social unit based on a life of sharing”, and by virtue of the collective arrangement the benefit was intended to apply regardless of whether the couple was able to marry. These were criteria that the respondent and his partner clearly satisfied and the Court found that sexual orientation was the only reason behind the denial of the benefit. This distinction on the basis of sexual orientation was an arbitrary and unfair violation of their right to equality and amounted to discrimination in the conditions of employment, contrary to the Equal Employment Opportunities Law.
The Court denied El-Al’s petition and declared that the benefit of the airline ticket contained in the collective agreement had to be made equally available to same sex partners of El-Al’s employees.
Dissent (per Justice Kedmi)
Justice Kedmi wrote that the key question to be decided was whether the concept of “spouse” used in the employment agreements between El-Al and its employees included same-sex companions. He gave several reasons for holding that it did not and could not. The first was the linguistic meaning of the word “couple”, which he defined as the joining of two individuals of opposite sexes. According to Justice Kedmi, “the Book of Books gives decisive proof of this”. He then quoted Genesis. The El-Al agreement spoke of both “spouses” and “recognized companions”. The latter term, however, did not depart from the framework of “couples”. He wrote: “A married couple and an unmarried couple are fundamentally equal, in so far as the meaning of the concept ‘couple’ is concerned; distinguishing between them on the basis of ‘marriage’, which merely constitutes a formal, external mark of the framework of their joint lifestyle as a ‘couple’, amounts to improper ‘discrimination’ and not a permitted ‘distinction’”.
He criticised the majority opinion for finding that same-sex couples were equal to heterosexual couples. In his opinion, the Court was “dealing with two ‘couples’ that are completely different in nature; the one — the heterosexual (whether married or unmarried) — is a ‘couple’, whereas the other — the homosexual — is merely a ‘pair’; therefore conferring a benefit on the one does not constitute discrimination when not conferring the benefit on the other”. Justice Kedmi concluded that the distinguishing feature that made it possible to describe as a couple two individuals who enjoyed a life of sharing and harmony was their ability to fulfil the precept of “being fruitful and multiplying”.
Concurrence (per Justice Dorner)
Justice Dorner wrote separately to discuss the changing social norms in Israel and the rest of the world regarding homosexuality. The principle of equality, he said, did not operate in a social vacuum. He considered the laws of Europe, the jurisprudence of the European Court, and a variety of cases including the cases of Norris and Modinos, the Canadian Charter and the cases of Vriend v. Alberta and Egan v. Canada (decision of the Federal Court of Appeal finding sexual orientation to be an analogous ground under the Charter). Although homosexuality was still criminalised in some States of the United States, the courts in several States had recognised the rights of a same-sex spouse, using the ‘functional test’. He cited to the New York State Court of Appeals case of Braschi v. Stahl Associations (1989), which recognised the occupancy rights of the life companion of a deceased tenant.
Justice Dorner then adopted the functional test to determine whether the difference between homosexual and heterosexual couples was relevant for the benefit provided. “According to this test, no distinction should be made between homosexual couples and heterosexual couples, if the spousal relationship between the spouses of the same sex meets the criteria that realize the purpose for which the right or benefit is conferred.” If, for example, the purpose of the benefit was to encourage having children, then withholding the benefit from a same-sex spouse would not constitute discrimination. Here the airplane ticket was not to encourage “a lifestyle within a traditional family framework”. The sex of the spouse was not relevant for the purpose of the benefit.
El-Al Israel Airlines Ltd v. Danielowit Israeli Supreme Court sitting as the High Court of Justice (full text of judgment, PDF)
