Double Nickels on the Dime: Supreme Court of Israel Creates Burden-Shifting Framework for Gender Pay Disparity Cases

According to the Washington Post,

Israeli feminists on Friday welcomed a Supreme Court ruling they say will help enforce equal pay laws for men and women.

The ruling, issued Thursday, requires employers paying different wages to men and women to prove it is not due to gender discrimination. The decision stemmed from a case that began with a woman who was earning 70 percent of the wage of a male colleague at a hardware store chain. Her employer claimed this was because she requested a lower salary when applying….

Dana Naor-Mande’el, legal adviser to the Israeli Women’s Lobby that brought the suit, said the ruling shifts the burden of proof for gender discrimination to the employer.

“An employer cannot hide behind the fact that a woman asked for less money,” she said. “It gives women more leverage.”

This seems like a good idea to me and similar to the framework created by the Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), for challenges to the use of peremptory strikes on prospective jurors in this country. Under the Batson framework, once the defendant makes a prima facie showing of gender or racial discrimination in the use of peremptory challenges (such as by showing the the prosecutor disproportionately struck (fe)male or minority jurors), the burden then shifts to the government to provide gender/race neutral explanations for the use of the strikes. Similarly, under the new Israeli framework, once the plaintiff makes a prima facie case of disproportionate pay, the burden then shifts to the employer to prove gender neutral reasons for the pay disparity.

-Colin Miller

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