“How much trouble are we in?” the office administrator asked.
I looked at the sheaf of text and Slack messages, loaded with emojis, and stopped on one sent in early March that asked, “Good to know you’re almost done with the project and headed for the weekend. Do you garden?” flanked by an eggplant emoji. Other texts included peaches, dump trucks, sweat droplets, and smiley faces with tongues sticking out.
“How did you get these?” I asked.
“An employee resigned, refused to come in for an exit interview, and sent these in the mail.”
“Did you notice the recipient of the gardening question responded, ‘stop, just stop!”
“No, these were just informal texts going back and forth between coworkers and employees and their supervisor. I don’t use emojis myself, and don’t really look at them. When I see them on texts, I assume someone’s just being whimsical or cute. Just having fun.”
“If you’ve allowed this type and quantity of inappropriate messages on a company messaging system, particularly if some of sexually suggestive emojis were sent by a supervisor or if the supervisor was aware of what was going on, you’ve allowed potential sexual harassment. One stupid emoji isn’t so bad. You have over a month of emoji-laden texts here. And an employee asking for it to stop.”
Since 2004, there has been an exponential increase in emojis showing up as evidence in lawsuits, with more than 100 emoji-related court cases in 2019.1 Some emojis have inappropriate connotations. The eggplant signifies sexual interest and represents male genitalia, the peach emoji a butt, the dump truck a large or shapely bottom. Further, depending on the devices used and different software versions used by sender and recipient, a sender may send one emoji while the recipient receives a different one.
Some senders use emojis to convey an advance or emotional tone they’re aware might be inappropriate in words, believing the message less offensive when cloaked in a cartoon symbol.
Employer actions
Although it seems far-fetched that emojis inserted into text messages could end up as evidence in a sexual harassment or hostile environment lawsuit, it now happens regularly.2 Courts have found emojis relevant when assessing the pervasiveness and severity of the plaintiff’s harassment claim.3
In the 2019 federal sexual harassment lawsuit Herman v. Ohio University, Terr Herman won $90,000 on her claim against a supervisor who sent her winking emoji, commented on her looks, and texted her wishes for sweet dreams late at night. Although the case rested on more than the emojis, the court considered them in assessing the totality of the circumstances.3
In the federal court case Stewart v. Durham, a female job candidate brought sexual harassment and emotional distress charges against the town of Durham and one of its employees when he sent her an obscene picture requesting sexual favors in exchange for a job interview. The plaintiff’s emotional distress charges didn’t succeed because she’d sent “blowing kiss” and “winking” emojis in response to the obscene picture.4, 5
Given the pervasiveness of emojis, with an estimated 71% of Americans using emojis, stickers or GIFs when texting or using mobile messaging apps,2 employers need to train their supervisors and managers to be aware of the problems emoji-laden texts create.
Employers can reduce their potential liability by setting clear expectations concerning professional internal and external communications. They may also want to update sexual harassment policies to include an emoji-use policy for work-related emails and text messages.
Employee protection
If you’re an employee who’s received inappropriate emojis, you can delete them or memorialize the problem to HR in writing, so you have a record your employer was put on notice. This notice triggers your employer’s duty to investigate and respond appropriately to the harassment. Don’t make the mistake Erica Stewart did, by sending your own emojis back.
Finally, if you, like this manager, were unaware of the problems emojis can bring, please remember that regulatory agencies often use the standard “know or should have known” when assessing liability.
1 https://slate.com/technology/2019/11/emoji-court-cases-crime-free-speech-contract-law.html; https://www.theverge.com/2019/2/18/18225231/emoji-emoticon-court-case-reference
2 https://workforce.com/news/harassment-by-emojis
3 Is an Emoji Worth a Thousand Words? The Impact of Emojis in the Workplace – Lexology
4 https://ogletree.com/insights/harassment-by-emojis-leaving-employers-at-a-loss-for-words/