Privileged but equal? A comparison of U.S. and Israeli notions of sex equality in employment law.

• Author: Eisenstadt, Leora F.

ABSTRACT

Ever-expanding media coverage, scholarship, and popular publications discussing the difficulty of combining work and family suggest that this issue is now the essential locus for gender debate in the United States. The essence of the debate is the meaning of equality: whether it carries the same meaning for women and men, whether biological and sociological differences should impact the understanding of equality, and whether law and social policy should reflect or encourage these differences. Privileged but Equal details the theory of sex equality that is embodied in Israeli employment law and contrasts it with the U.S. approach. The Article suggests that the Israeli system employs an "equality through difference" model, which approves of special treatment for women in the form of privileges, options, and exemptions so that women who maintain primary responsibility for family and home have greater opportunities to enter and succeed in the workplace. The Article explores the historical circumstances, societal needs, and cultural pre-dispositions that have shared in creating the Israeli conception of sex equality in an effort to determine whether Israel's approach or any of its parts would be palatable, appropriate, or vastly unworkable in the United States.

TABLE OF CONTENTS I. INTRODUCTION II. CONCEPTIONS OF EQUALITY III. ISRAELI EQUAL EMPLOYMENT LEGISLATION A. Israel's Continuing Statutory Commitment to Sex Equality B. Israeli Legislation's Difference Approach to Sex Equality 1. Night Work 2. Maternity Leave 3. Prohibited, Limited, and Dangerous Work 4. Retirement Age 5. Exemption from Military 6. Preservation of Privilege IV. ISRAELI CASE LAW ON SEX EQUALITY IN EMPLOYMENT V. CONTRASTING ISRAELI AND U.S. APPROACHES TO SEX EQUALITY IN EMPLOYMENT VI. SOCIAL, HISTORICAL, AND STRUCTURAL UNDERPINNINGS OF ISRAEL'S EQUALITY THROUGH DIFFERENCE MODEL A. Israel's Collectivist Ideology B. The Demographic Threat and Resulting Importance of Motherhood C. Impact of Jewish Law and Its Exemption of Women from Ritual Obligation D. European Countries' Approach to Family and Work VII. CONCLUSION I. INTRODUCTION

In 2002, Sylvia Ann Hewlett's book, CREATING A LIFE: PROFESSIONAL WOMEN AND THE QUEST FOR CHILDREN, (1) caused an uproar in the U.S. media. It described a widespread phenomenon of professional women who are increasingly waiting to have children into their late thirties and forties, when it is often biologically too late. The book stirred much discussion about the professional and familial choices that women in the United States are making and how these choices impact society and the personal happiness of individual women. Many of these women waited to consider having children because of the toll it would take on their careers or because they had spent their youths focused on education and career. (2) The overwhelming response to the book suggested that many women experienced this problem of mixing career and family. It became clear that more often than not in the United States, women who wanted to pursue the feminist ideal of professional parity with their male counterparts had to forego motherhood at least until they had established themselves as workers. (3)

The discourse that followed this book in classrooms and living rooms across the country suggests that the combination of women, work, and family is now the essential locus for gender debate. The emerging responses will guide the feminist and counter-feminist movements in the United States. The essence of the debate is on the meaning of equality--whether the achievement of equality in U.S. society carries the same meaning for women as it does for men, whether biological and sociological differences should impact the understanding of equality, and whether law and social policy should reflect and even encourage these differences. The answers to these questions undoubtedly depend on the advocate's notion of U.S. society and its goals. Should individual happiness (or the pursuit thereof) be the ultimate determinant of social and legal policy? Or are there larger societal aims that should take precedence over individual needs and desires? In answering these questions, it is useful to remove our U.S. blinders and recognize that numerous countries are dealing and have dealt with similar questions.

Societies differ in the ways they institutionalise the relationship between family and work for both women and men. They differ in the opportunities they provide for both to combine professional and family careers. They differ in the supports they provide women in their roles as mothers and homemakers.... These differences among societies are reflected in public policies regarding both the public and private spheres. Such policies, in turn, reflect economic and political interests as well as normative ideals regarding gender roles and family life. (4) In essence, societies differ in the ways in which they define and conceive of equality, particularly as it pertains to the sexes.

To shed light on the emerging debate of the proper balance of work and family, this Article will explore Israeli society's approach to sex equality, comparing Israeli equal employment law to its U.S. counterpart. The United States has adopted a formal equality approach, believing that, for the most part, equality is achieved through equal treatment. Israel, on the other hand, provides special treatment for women in the form of mandatory paid maternity leave, shorter work hours for mothers, optional early retirement for female workers, and maternal exemptions from the military. This special treatment is part of an equality-seeking regime; it is an attempt to equalize a societally unequal situation so that women who maintain primary responsibility for family and home have greater opportunities to enter and succeed in the workplace. While this approach may at first seem repugnant to those schooled in U.S. and Aristotelian notions of equality, Israel's system allows for women in large numbers to join the labor force while not delaying marriage and childbirth. Israeli laws, in effect, provide a statutory encouragement for combining work and family. But is this equality? This Article explores the benefits and flaws of the Israeli approach. It seeks to locate the historical circumstances, societal needs, and cultural predispositions that have shared in creating the Israeli conception of sex equality. In the United States, where there is clearly a struggle to effectively combine work and family roles, the Israeli approach must be considered to determine whether it or any of its parts would be palatable, appropriate, or vastly unworkable.

Part II of this Article will provide a brief overview of the varying theoretical approaches to sex equality, locating Israel's approach within them. Part III will address the Israeli legislative commitment to sex equality in employment and will explore the specifics of the special treatment approach embodied in that legislation. Part IV will examine the relevant Israeli case law that deals with sex equality in employment, identifying the ways in which it mirrors or deviates from the legislative approach. Part V will briefly review U.S. equal employment opportunity law, seeking to highlight the differences in Israel's approach. Finally, Part VI will explore the ways in which Israeli equal employment law reflects multiple societal priorities and values. This Part will address the following: Israel's dominant collectivist ideology that focuses not on the individual's needs but on those of the community, the Arab-Israeli conflict and the resulting demographic threat facing the Israeli population, the Jewish legal system's endorsement of sex difference, and the influence of European approaches to sex equality.

Nitza Berkovitch, an Israeli sociologist, has noted that "[l]aw can be conceived as a cultural product.... [It] embodies and expresses specific social ideologies through its assumptions about society and its various members. At the same time, law also plays an active role.... [It] reflects as well as reproduces social structures." (5) This Article will examine Israeli equal employment law as a means of understanding different theoretical approaches to equality. It will explore how social structures and ideologies inform the chosen approach to equality and the ways in which employment law, in particular, both reflects and reproduces these social structures.

2. CONCEPTIONS OF EQUALITY

   When discussing sex equality, the conversation typically begins with reference to the Aristotelian notion that equality entails the treatment of likes alike and un-likes differently in accordance with their unlikeness. (6) This definition, as Catherine MacKinnon has pointed out, served to create the sameness/difference dichotomy that has become the dominant approach to sex equality and that has occupied most legal debate and scholarship on the subject. (7)

   The U.S. conception of sex equality and laws that seek to eradicate sex discrimination are premised on a theory of "sameness," in which a woman's relevant similarity to men is the basis on which she can demand equal treatment. (8) The U.S. approach embodies theories of formal equality and substantive equality, both of which are based on the principle of sameness. Formal equality is depicted in John Stuart Mill's notion that sex equality may be achieved through commitment to "a principle of perfect equality, admitting no power or privilege on the one side, nor disability on the other." (9) Such an approach insists on the removal of barriers to equal achievement and the eradication of discrimination. Substantive equality added to this notion the recognition that equal treatment was not sufficient to achieve equality and that equal opportunity could only be ensured through prohibition of intentional and unintentional discrimination, sexual harassment, and hostile work environments. (10) Substantive equality demanded the...