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

UPDATED: Aug 15, 2015

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 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. 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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