Benefits and Compensation

Is Social Awkwardness a Valid Reason to Terminate an Employee?

When it comes to uncomfortable situations, some people gravitate more toward the “awkward turtle” end of the spectrum than the “social butterfly.” When an ill-timed joke costs an employee her job, however, is she entitled to unemployment benefits?

Employer’s Goal: Dignity and Respect

Regional Health is one of the main healthcare providers in the West River region of South Dakota. It operates several urgent care clinics, mainly in Rapid City, where Regional Health is headquartered.

“Nicole” was hired on June 6, 2016, as a physician’s assistant for one or more of the urgent care clinics under Regional Health. Her job duties included assessing, diagnosing, and treating patients under the supervision of a physician.

Regional Health’s performance policy states that caregivers will honor the dignity and worth of each person, which includes protecting a patient’s dignity and confidentiality, treating everyone with courtesy and respect, and honoring differences in lifestyles and beliefs. The policy also stresses the importance of putting patients first and creating a positive experience.

Nicole’s Joking Falls Flat

On January 25, 2017, Regional Health received a report from a provider stating that Nicole advised a student patient, “No glove, no love.” According to Nicole, this statement was made while educating the patient about being treated for a sexually transmitted disease.

On August 8, Nicole performed a pelvic examination on a female patient while a lab assistant was observing. During the examination, Nicole observed that the patient had a genital piercing and said, “I have never understood why people do this to themselves. How do you walk with that thing in?” She intended the statement to make the patient feel less uncomfortable.

Later that day, the lab assistant sent an e-mail to an administrator addressing the incident, including that Nicole’s statement made her uncomfortable. She also stated that the patient appeared uncomfortable and was unlikely to return to the clinic because of the comments. Nicole was discharged for violating Regional Health’s performance policy standards.

Ill-Timed Jokes Don’t Equal Misconduct

The South Dakota Unemployment Insurance Division determined that Nicole’s separation from employment wasn’t because of disqualifying conditions such as misconduct. Regional Health appealed the determination.

The administrative law judge (ALJ) upheld the determination awarding unemployment benefits. It stated that Nicole should have considered exercising greater judgment in how she communicated to her patients. However, her statements were intended to further Regional Health’s interest in providing patient care and education. The ALJ determined that she didn’t willfully violate her employer’s policies or standards, nor did her conduct rise to the level of carelessness or negligence to the degree of intentional misconduct.

Bottom Line

It’s human nature to want to make others more at ease when we encounter a shared uncomfortable situation. Some people may make a joke to try to ease the tension. Sometimes the attempt at humor falls flat and only comes off as social awkwardness, making everyone involved even more uncomfortable.

If an employee makes an inappropriate comment at an inappropriate time, it may be that she’s attempting to ease the tension. If such statements are a violation of your policies, the reasonable outcome may be to discipline her, including termination. However, an inappropriately timed joke or statement doesn’t constitute misconduct if she’s acting out of her discomfort with a social situation. Without misconduct or extreme carelessness, you will likely have to pay unemployment benefits.

Kassie McKie Shiffermiller is an editor of South Dakota Employment Law Letter and can be reached at