by Littler Mendelson PC
Note:On occasions, WorkSaver will provide articles that do not deal directly with employment testing, ergonomics, or wellness, but are considered potentially helpful to employers. This is one of those articles:
Work does not always occur within the physical confines of a workplace. Indeed, due to the interconnectivity of today’s world, work often takes place in the digital space, where employees regularly use pictorial icons and images known as emojis and emoticons to express themselves. Although emojis and emoticons are not hieroglyphics, they can be difficult to interpret, and courts have increasingly had to grapple with them as evidence in discrimination and harassment claims. So, when does the use of emojis go from to ? When is more than a cheeky gesture between colleagues?
The answer, as is often the case, depends on context and frequency of use. But, as the years go by and emojis work their way into legal decisions with increasing frequency, employers can be sure of one thing – there are workplace risks associated with emojis.
Can Emojis Help Create Severe or Pervasive Conduct in Violation of Anti-Harassment Laws?
Courts have found emojis particularly relevant when analyzing the “severe or pervasive” prong of a harassment claim. An employee claiming hostile work environment harassment in violation of Title VII of the Civil Rights Act must show that the work environment is permeated with “discriminatory intimidation, ridicule, and insult” that is sufficiently “severe or pervasive” to alter the conditions of the employee’s employment and create an abusive working environment.1
In Bellue v. East Baton Rouge Sheriff,2 the Middle District of Louisiana found that a “winking smiley” () coupled with commentary about a plaintiff’s good looks could be regarded as flirtatious, but that such “insensitive, boorish, uncouth, or even offensive” conduct, standing alone, did not rise to the level of sexual harassment. Similarly, in Allen v Ambu-Stat, LLC, the U.S. Court of Appeals for the Eleventh Circuit found that a former employee’s sexual harassment claim failed because the conduct at issue, which included the use of a tongue emoji, pointing at the former employee’s groin area, and making remarks about a sexually suggestive song’s lyrics, was not sufficiently pervasive to be actionable.3 Last year the Southern District of Florida in Mazard-Saintilus v. Miami-Dade County,4 dismissed a sexually hostile work environment claim based in part on this text to a high-school employee: “OMG! You are gorgeous. Damn . . . I need to hit this up” accompanied by a “red heart” emoji and a “wink face” emoji. The court said it could not find a single case where text messages (including emojis) and phone calls, exchanged during one night, outside the workplace, were considered serious sexual harassment. See also Harrison v. City of Tampa, No. 17-01369, 2019 WL 2358791 (M.D. Fla. June 4, 2019) (an alleged harasser’s sending a plaintiff a “face kissing” emoji, a “face with hearts for eyes” emoji, and a “smiling dog with hearts” emoji, was not sufficiently severe or pervasive to constitute harassment).
Could it be illegal harassment to send a co-worker text messages with emojis having allegedly sexual implications, including an “eggplant,” a “peach,” a “dinner plate” and many depicting “dripping water”? In Mosley v. Preston,5 a Georgia federal court considered precisely that issue.6 The court ultimately rejected the plaintiff’s sexual harassment claim because the severity of the conduct was limited and there was no evidence that the alleged harasser controlled the plaintiff’s hiring or had supervisory authority over him.
It is important to note, however, that the emojis and other comments at issue in Mosley might have led to a finding of severe or pervasive conduct if they had occurred more than once or if the employer had failed to take action upon being informed of the messages. The court also considered it significant that the Mosley plaintiff stated he did not feel uncomfortable working with the alleged harasser even after the text messages, thus weakening his own argument that the messages impacted his ability to work.
To think that emojis like those in Mosley could not contribute to liability in any case would be a mistake. Indeed, some courts have found that arguably less-offensive emojis contributed to an atmosphere that was, objectively and subjectively, severe enough to create a hostile work environment. For example, in Herman v. Ohio University,7 a supervisor sent a female subordinate late-night messages about her physical looks; asked her to go to dinner with him; sent her a “winking” emoji; and texted her “sweet dreams” after the employee asked him to stop contacting her about non-work matters. In denying the defendant’s motion for judgment on the pleadings, the court concluded that the alleged circumstances were objectively and subjectively severe enough to create a hostile work environment. Of course, Herman did not hinge exclusively on the use of emojis, but the court considered them in analyzing the totality of the circumstances.
While the cases to date where emojis have led, or contributed, to a finding of severe or pervasive conduct are few, all signs indicate that employers should remain vigilant about them in a legal environment where employees do not hesitate to rely on emojis to substantiate Title VII claims.
Other Considerations for Employers Concerning Emojis
Employers should pay attention to emoji use in the workplace for more reasons than employees’ potential reliance on them in a harassment or hostile work environment claim. Human resource professionals observe anecdotally that emojis and other digital communications in the workplace can impact relationships, lead to morale issues and prompt internal complaints, even if those complaints never reach a courthouse.
Part of what makes emojis so prone to misunderstandings and hurt feelings is that, in the digital world, everyday symbols take on new meaning. A peach is not just fruit, an eggplant is not only a vegetable, an octopus may be a request for a virtual hug, and a devil emoji may signify a desire to engage in sexual activity. These double entendres, coupled with the fact that a single workplace often includes employees from vastly different backgrounds, including different cultures and generations, can lead to ambiguous messages, misunderstandings and conflict. Emojis and other digital tools are not simply a Gen-Z or millennial problem but pervasive in instant messaging platforms that have become commonplace during the COVID-19 pandemic.
Steps Employers Can Take to Help Mitigate Risks Associated with Emoji Use
Employers can periodically review their employee handbooks to ensure the policies contained in them adequately account for the day and age in which they are doing business. For example, policies concerning professionalism and communication can address not just traditional forms of communication but also more recent developments, including the use of emojis. Because COVID-19 has greatly impacted the way individuals think of “work,” and more employees work remotely than ever before, it is important that employers provide training that makes clear that the same rules that apply within the confines of the traditional office apply equally to employees working remotely. As part of a company’s training with respect to emojis, it should point out the special dangers of ambiguity and misinterpretation that emojis carry and the need for carefully avoiding communications that could be interpreted as insulting or racially or sexually harassing.
Regular training and e-mail blasts reminding employees of key company policies are also helpful tools. Employers might also consider partnering with their third-party vendors to restrict the types of emojis that may be used in chat platforms, offering a customized array of choices that excludes some of the most controversial ones.
Finally, employers should regularly consult with their employment counsel to keep up with recommended practices and avoid unnecessary risks.