Sexual Harassment in the Workplace: A Guide for Employers and Employees | Adv. Tidhar Tzur

The Prevention of Sexual Harassment Law is one of the most stringent legal instruments in Israeli law. Sexual harassment in the workplace imposes heavy obligations on the employer-even when unaware, and even when the act was not committed by the employer personally.

5 Things You Should Know Before Reading Further

1. Sexual harassment is both a criminal offense and grounds for civil action-two avenues that may be pursued simultaneously and independently of one another.
2. An employer who has not fulfilled statutory obligations may be held liable for a tort committed by an employee-even if unaware of it at the time.
3. Compensation without proof of damage for sexual harassment stands at up to NIS 120,000. Under the 2023 amendment-when the harassment is motivated by racial or hostile intent-the amount is doubled.
4. The Labor Court examines claims of sexual harassment using a dual test: objective and subjective-the victim’s feelings alone are insufficient.
5. An employer who has properly fulfilled all obligations-implemented preventive measures, conducted a proper investigation, and handled the complaint efficiently-may be exempt from liability.

What Constitutes Sexual Harassment-and What Does Not

The Prevention of Sexual Harassment Law, 5758-1998, sets forth in Section 3 an exhaustive list of acts constituting sexual harassment. The list encompasses a broad range: from physical acts to repeated sexual propositions, degrading references to a person’s body, and offensive publications. The law covers harassment between men and women, women and men, and within the same sex.

However, it is important to emphasize: not every unpleasant experience constitutes sexual harassment as defined by law. The National Labor Court held in LCA 54435-12-19 Dr. Liana Beni Adani v. Tel Aviv-Yafo Municipality (4.8.2021) that the binding precedent in Israel is an objective-subjective test-“the subjective feeling of harm alone, however genuine, is insufficient.” The alleged conduct must also meet the objective test, not merely the complainant’s personal feelings. In other words: the court examines both the victim’s subjective experience and whether a reasonable person would view the conduct as sexual harassment.

Three Avenues of Recourse-May Be Pursued Concurrently

Criminal avenue: Filing a complaint with the police for an offense under the Penal Law-Sections 348-349 and others. Conducting an investigation, filing an indictment, criminal proceedings. This avenue does not require proof of monetary damage.

Civil avenue: Filing a claim with the Labor Court, either against the harasser personally or against the employer. Compensation without proof of damage reaches up to NIS 120,000 for harassment, and up to NIS 240,000 when accompanied by racial or hostile motive.

Disciplinary avenue: Filing an internal complaint with the employer’s designated official. This avenue requires a proper investigation, determination, and implementation of measures. It does not cancel or replace the other two avenues.

Employer Liability-The Heart of the Law

This is the true innovation of the Prevention of Sexual Harassment Law: the employer is not only obligated to refrain from harassment personally-the employer also bears liability for the acts of employees.

Section 7 of the Law provides that an employer employing more than 25 employees must implement three types of measures: prevention, treatment, and remediation. This includes: publishing regulations containing the main provisions of the law, appointing an “official” to handle sexual harassment complaints, and establishing an effective procedure for filing and investigating complaints.

The Prevention of Sexual Harassment Regulations (Employer’s Obligations), 5758-1998 detail the practical requirements: how the investigation is conducted, what happens when the official has a conflict of interest, how to handle the complaint after findings are determined, and more.

The employer will be held liable if obligations were not fulfilled and an employee committed harassment-even if the employer was unaware of the harassment and did not commit it personally.

When Is the Employer Exempt from Liability

In LCA 51504-01-14 Jane Doe v. John Doe (08.09.2015), an important precedent was established: an employer who has fulfilled obligations will not be held liable. In other words-one who implemented reasonable preventive measures, acted efficiently upon learning of the matter, and remedied the harm to the extent possible-may be exempt from liability even if an employee in the organization was harassed.

The rationale: the law does not impose absolute liability on the employer without conditions. It imposes an enhanced duty of care-and one who fulfills it will not be held liable for the undesired outcome that occurred despite such efforts.

The Rule Many Employers Miss: The Investigation Must Be Substantive

The provisions of the Regulations set forth in Section 6(b) and onward how the investigation shall be conducted: hearing all parties, receiving evidence, reasoned determination, and reporting to the parties. An investigation conducted superficially, without genuine hearing of the parties, and with predetermined conclusions-does not fulfill the statutory duty of investigation.

Section 6(c) of the Regulations provides that when the official has a conflict of interest or personal relationship with one of the parties-the matter must be transferred to another official. The rule: “An official with personal involvement in the subject of the complaint shall not handle the investigation.”

A Strategy That Protects the Employer in Advance

In sexual harassment claims, the strongest defense is proof that the employer fulfilled all obligations. This requires:

Valid regulations-published, brought to employees’ attention, and containing all elements required by law.

Authorized and trained official-duly appointed, having completed appropriate training, and known to employees as a point of contact.

Prompt and orderly response-when a complaint is received, the investigation begins without delay, is conducted according to the rules, and concludes in writing with clear findings.

Separation of parties-following a determination, measures are taken to ensure the situation does not continue-even if harassment was not proven after investigation and no judgment was rendered, and without prejudicing the rights of the complainant.

Positive policy, not merely prohibitive-Labor Court rulings have repeatedly emphasized: the duty is not only to “prohibit”-it is also to “promote” an organizational culture that does not allow the phenomenon to exist.

Conclusion: Not “What Happened”-But “What You Did”

The practical emphasis to remember: in a sexual harassment claim, the discussion often focuses not only on the question “Did the harassment actually occur”-but also on a parallel and equally substantive question: “Did the employer do everything required to prevent and address it?” One who can prove an affirmative answer to the second question-is in a significantly stronger legal position.

Employers who wish to ensure their sexual harassment prevention system meets statutory requirements-and employees who feel they have been harmed-should obtain legal advice before the situation escalates.

© Tidhar Tzur Law Firm | This article is for general information purposes only and does not constitute individual legal advice.