Age, Gender, and Discrimination – Examining Continued Employment Beyond Mandatory Retirement Age
13 July 2025
We would like to update you on a significant recent ruling by the National Labour Court, which addressed the obligations of employers when requiring employees to retire upon reaching the mandatory retirement age. The court held that, beyond considering whether to continue employing an individual past mandatory retirement age, employers may, in many cases, be required to demonstrate that their decision is free from discriminatory motives.
The ruling underscores the importance of conducting a structured and transparent process when evaluating an employee’s request to continue working part the retirement age. This includes clearly documenting the considerations taken into account and giving the employee an opportunity to respond and present their case.
Section 4 of the Retirement Age Law, 2004, permits employers to mandate retirement at age 67 for both men and women. In the Gavish case (HCJ 9134/12, Prof. Gavish v. The Knesset, April 21, 2016) the Supreme Court acknowledged that this provision infringes on the right to equality, but found the infringement to be constitutionally valid.
This conclusion was based, in part, on the earlier Weinberger case )Labour Appeal (National) 209/10, Weinberger v. Bar Ilan University, December 6, 2012), the National Labour Court held that despite the authority granted by Section 4, employers must still requests from employees wishing to continue working beyond the mandatory retirement age. In doing so, employers must take into account facts such as the employee’s personal circumstances, contributions to the workplace, organizational needs, pension arrangements, and the possibility of continued employment in a modified role.
A recent judgment in the Shaare Tzedek case (Labour Appeal (National) 35753-03-24, Rochlmer v. Shaare Tzedek Medical Center, June 23, 2025), the Court examined the case of a female doctor whose request to continue working beyond age 67 was only partially granted. While the hospital extended her employment for a few months, she claimed discrimination, citing that male doctors has been allowed to continue working beyond the mandatory retirement age.
Although the Regional Labour Court dismissed her claim, the National Labour Court overturned the decision on appeal. The Court clarified that the initial burden on the employee to raise a claim of discrimination is relatively low. For example, if data suggests a pattern of bias in how post-retirement employment requests are handled, the burden shifts to the employer to prove that no discrimination occurred.
Importantly, the Court emphasized that proving discriminatory intent is not required. Rather, the focus is on whether the objective outcome of the employer’s decision-making process reflects discriminatory practices. While employers may, as part of their managerial prerogative, establish criteria for continued employment beyond the mandatory retirement age, those criteria must not result in unlawful discrimination.
The ruling also reinforced the importance of a fair and thorough process when considering such requests prior to reaching a decision, while taking into consideration all the relevant considerations, in line with the principles established in the Weinberger case.
As the Court found that the hospital failed to meet its burden in this case, the matter was remanded to the Regional Court to determine appropriate financial remedies for the plaintiff.
Key Takeaway – The National Labour Court’s ruling highlights the necessity of a fair and thorough process when evaluating requests to continue employment beyond the mandatory retirement age. Employers must carefully consider all relevant factors as outlined in case law, and provide the employees with a meaningful opportunity to respond and present their case. In addition, the ruling calls for a broader review of all cases in which such requests for continued employment beyond the mandatory retirement age were approved, with particular attention to ensuring that the decisions are free from discrimination, including on the basis of gender.
Employers who wish to review their compliance with these requirements or assess their internal procedures are encouraged to seek tailored legal advice.
Labour Law Department
Herzog Fox & Neeman
