Age, Gender, and Discrimination – Examining the Continued Employment of Workers After the Mandatory Retirement Age
13 July 2025
We would like to update you regarding a significant decision recently handed down by the National Labor Court dealing with the question of the obligations of an employer who enforces retirement upon an employee’s reaching the mandatory retirement age. In the decision, it was ruled that in addition to examining the possibility of continued employment after mandatory retirement age, in many cases the employer will have burden of proving that a decision made regarding continued employment after mandatory retirement age does not have a taint of discrimination.
The decision emphasizes the need for an orderly process when considering an employee’s request to continue employment after retirement age, including weighing the relevant considerations made by the employer in this context and allowing the employee to refer to these considerations and apply them in his case.
Section 4 of the Retirement Age Law, 5764-2004, allows an employer to require employees, both male and female, to retire from their jobs when they reach the age of 67. The Supreme Court ruled in the Gavish case (HCJ 9134/12, Prof. Gavish v. The Knesset, April 21, 2016) that while this Section does indeed violate the right to equality, it is a violation that withstands constitutional tests.
The decision of the Supreme Court in the Gavish case was based, inter alia, on a previous ruling of the National Labor Court in the Weinberger case )Labor Appeal (National) 209/10, Weinberger v. Bar Ilan University, December 6, 2012), in which it was held that despite the provision of Section 4 of the Retirement Age Law, which permits the employer to force the retirement of employees at the age of 67, the employer is obligated to consider applications from employees who wish to continue working after they have reached the mandatory retirement age. In this context, the employer must consider, inter alia, the employee’s personal circumstances, his contribution to the workplace, systemic considerations of the workplace, considerations relating to the employee’s pension arrangements, and the possibility of employing the employee in a different manner than the way in which he was employed before he reached mandatory retirement age.
A recent judgment of the National Labor Court in the Shaare Tzedek matter (Labor Appeal (National) 35753-03-24, Rochlmer v. Shaare Tzedek Medical Center, June 23, 2025), dealt with the case of a doctor who was employed at the hospital. Her request to continue her employment after she reached the age of 67 was considered, but the hospital allowed continuation of her employment for only a short period, that is, a few months after the mandatory retirement age.
In a proceeding that she filed with the Regional Labor Court, the plaintiff claimed that she was discriminated against, based, among other things, on the fact that the hospital continued to employ male doctors after the mandatory retirement age. The Regional Labor Court rejected the claim, but the National Labor Court reversed on appeal.
The National Labor Court stressed that for purposes of transferring the burden of proof that no discrimination took place on to the employer, the initial burden imposed on the employee is relatively light. Thus, for example, the burden of proof will shift if the relevant facts paint a picture of a pattern of discrimination or bias regarding compliance with requests to continue employment after the mandatory retirement age.
The National Labor Court also noted that there is no need to prove that the employer intended to discriminate, but rather that it must be objectively determined whether the results of the considerations of applications to continue employment after mandatory retirement age reflect an existence of discrimination. Although the National Labor Court noted that, as part of managerial prerogative, an employer is authorized to set criteria for continuing employment after retirement age, it made it clear that it must be ensured that these criteria do not lead to improper discrimination.
The decision also emphasized the significance and importance of carrying out proper procedures before a decision is made regarding the application of an employee who wishes to continue working after mandatory retirement age, while taking into consideration all the relevant considerations as set in this context by the Weinberger decision.
As a result of the conclusion of the National Labor Court, according to which the hospital did not meet the burden, shifted to it, under the circumstances of the case, the proceeding was sent back to the Regional Labor Court for purposes of judging the financial remedies to be awarded to the plaintiff.
Bear in mind: The ruling of the National Labor Court emphasizes the need for an orderly process when considering employees’ requests to continue employment after the mandatory retirement age, while weighing all the considerations listed in case law in this context, and providing the employee with a proper opportunity to refer to these considerations and apply them in his case. Beyond that, it is necessary to examine all the cases in which requests to continue employment after mandatory retirement age were approved, with an emphasis on the absence of discrimination, including on the basis of sex.
Employers who wish to check their compliance with these rulings as well as the existing procedures and procedures in their organization are invited to seek personalized advice.
Labor Law Department
Herzog Fox & Neeman
