A New Valentine’s Day Conundrum for Employers: Could Emoji Messages Amount to Harassment in the #MeToo Era?

It’s Valentine’s Day yet again, but this year the climate is different for employers. Between the #MeToo and #TimesUp movements, and the near-daily collapse of famous and powerful men (and some women) due to allegations of sexual harassment, employers are on high alert for any sign that sexual misconduct could be going on underneath their noses. While the holiday season usually brings the most challenges for human resources professionals trying to ensure holiday parties do not get out of hand and religious accommodation issues are properly handled, another holiday causes heartburn for many: Valentine’s Day.

This year, in addition to the movements described above, many employers are focusing on the ever-evolving ways employees communicate with one another, including through the use of emojis in text messages and other electronic communications. As the proliferation of emoji use continues, so do the chances that emojis will be used inappropriately. Emojis meanings have become so complicated that there is an emoji encyclopedia to help the less savvy decipher the symbols. Similarly, with the cultural move toward a broader view of sexual harassment, emojis that have been viewed as generally innocuous may gain newer and more inappropriate connotations, thus opening the door for allegations of sexual harassment. For example, a wink face following a joke could be perceived as a proposition, a tongue out face could be interpreted as an inappropriate gesture, and let’s not even get into the new meaning of the eggplant emoji.

Obviously, it is not practical or wise to review each employee’s electronic devices searching for inappropriate emoji use and the like. However, it may be helpful for employers to do the following:

• Ensure electronic communications policies are robust and reference expectations of compliance with anti-harassment and nondiscrimination policies.
• Explicitly mention, in anti-harassment policies, that harassment can include symbols, such as emoji use.
• Conduct training for supervisory and managerial employees on nondiscrimination and anti-harassment laws, and make sure supervisors and managers are aware of their obligations to escalate any report of harassment (including inappropriate emoji use) to human resources or via other avenues the company articulates in its policies.
• Implement policies regarding electronic communication with nonexempt employees outside of work hours.