As many employers are attempting to navigate the #MeToo movement and cultural changes surrounding sexual harassment claims, they now face another legal issue on the harassment horizon: how to address harassment allegations involving wordless communications—namely, emojis. Workplace harassment claims regarding emojis are increasing at a significant rate and leaving employers scratching their heads.
In recent years, emojis have become the go-to method for quickly communicating expressions, gestures, and opinions. Most cellular phones and software programs allow users to utilize emojis (pictographs featuring everything from national flags to winking faces) the same way they use letters or words. In fact, there is even Emojipedia, a website which serves as a reference to help interpret the endless variety of emojis available to the public.
A recent study by the marketing platform Emogi reported that 92 percent of the online population uses emojis and 2.3 trillion mobile messages incorporated emojis in 2016. As is often the fashion with technology, emojis were once primarily for personal use, but now have made their way into the workplace. Since many employees use text messages and social media to communicate at work, emojis have become commonly used in professional communications and, in fact, they are now used to convey more substantive and nuanced messages. Instead of the once-omnipresent smiley face, for example, more obscure emojis such as facial expressions, hand gestures, and symbols are now often used to exchange messages between coworkers. The vast array of emojis available and their increased use at the workplace raise the question of whether emojis can actually convey motive or intent, and how much attention employers should pay to them.
Recent events suggest that employers should pay a lot of attention to emojis. Numerous employment lawyers and human resources professionals have agreed that harassment claims involving text messages with emojis conveying flirtation or sexual innuendo have increased significantly within the last several years. Although text messages with overtly sexual pictures and symbols are clearly prohibited by certain harassment laws and workplace policies, the newly ambiguous emojis (such as a winking eye or a tongue sticking out of a face) require more interpretation regarding their meanings, which may result in misunderstandings. These misunderstandings raise some legal questions about who gets to interpret the intended meaning of emojis and how much legal weight should be applied to these interpretations.
Misunderstandings are already making their way into the courts. A 2017 research study performed by Professor Eric Goldman of the Santa Clara University School of Law found 80 court opinions dated December 31, 2016, or earlier, containing the term “emoticon” or “emoji.” Notably, 30 percent of those cases had occurred in 2016 and about half of them had occurred since 2015. In Stewart v. Durham, a 2017 federal court case arising out of Mississippi, a female job applicant brought a Title VII sexual harassment and emotional distress claims against the defendant and one of its employees who had sent her an obscene picture requesting sexual favors in exchange for a job interview. In dismissing the plaintiff’s emotional distress claims, the court noted that the plaintiff had sent a “blowing kiss” and “winking” emojis in response to the obscene picture and thus concluded that her actions had not been indicative of any emotional distress. In 2015, a student at Western New England University brought a claim seeking injunctive relief and monetary damages against the university, claiming that he had been wrongfully accused of sexual misconduct and citing his accuser’s “positive emojis” as evidence of their mutual consent.
These cases illustrate that there is even greater potential for employer liability as the culture continues to shift toward a broader view of sexual harassment. More importantly, employers cannot ignore the fact that emojis have expanded beyond being a fun fad and that employees’ using them inappropriately at work may result in serious ramifications for all parties involved.
What can employers do? Of course, it is imperative to have strong electronic communications policies that incorporate by reference company anti-harassment and anti-discrimination policies. Also, employers should review their handbooks and policy manuals to ensure that their anti-harassment language covers the use of text messages and symbols (including emojis) that convey inappropriate, harassing, or offensive communications. Finally, employers must make managerial training a top priority so that supervisory employees know how to recognize harassment issues and understand how to handle or escalate them properly.