“How much trouble are we in?” the general manager asked.
I looked at the sheaf of text 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.”
“If you’ve allowed this type and quantity of inappropriate messages on a company messaging system, particularly if some of these were sent by supervisors or if supervisors were simply aware of what was going on, you’ve allowed potential sexual harassment. One stupid emoji isn’t so bad. You have more than a month of emoji-laden texts here.”
“I didn’t know; I don’t even look closely at these things; I thought the employees were just having fun.”
Unfortunately, “I didn’t know” provides a weak defense.
Since 2004, there have been exponential rise in emoji showing up as evidence in lawsuits, with more than 100 showing up in 2019.1 Some emojis have inappropriate connotations; senders use them to convey an emotional tone they’re aware might be inappropriate in language. The eggplant signifies sexual interest and represent male genitalia.
If you have one or more individuals sending offensive emojis over time it potentially constitutes a hostile work environment.
Although it seems far-fetched that emojis inserted into text messages could end up as evidence in a lawsuit, it now happens regularly.2 Courts have found emojis relevant when assessing the pervasiveness and severity of a 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 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.
Similarly, 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.
Employers may want to update their communications policies with clear expectations concerning professional and their sexual harassment policies to include an emoji-use policy for work-related emails and text messages.
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.
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