Is it harassment to accuse an employee of having surgery to get out of coming to work?

Asked on August 15, 2015 under Employment Labor Law, North Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

It may be "harassment" but that does not mean it is necessarily actionable:

1) The only conduct prohibited at work is discrimination against (which includes harassment of) a person on the basis of a protected characteristic. The main protected characteristics are race, religion, age over 40, sex, and disability. So if the accusation was not aimed at the employee for one of those reasons, it's likely not legally actionable.

2) Even if a protected characteristic was implicated--for example, the surgery was to address a disability--a one- or two-time comment not accompanied by any negative job or career action(s) (for example, no loss of time or hours, no demotion, no discipine, etc.) would not support recoving any compensation through the legal system; the legal system only provides compenation for actual injuries, costs, or losses, not just for being upset. For example, take assault: hitting a person is illegal. If someone punches me and does not damage and I incur no medical bills, it's possible the person could face criminal charges (since assault is also a crime), but if I sued them, I'd get nothing, because I was not injured in any way, physically or economicly. 


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