Emojis Are Starting to Pop Up in Discrimination and Harassment Cases

Law.com recently pronounced, “The Emojis are Coming!” 

That article got me thinking, are they coming to workplace litigation, too? After all, emojis are a form of communication, and work is all about communication. Which would suggest that we would start seeing them in harassment and discrimination cases.

According to Bloomberg Law, mentions of emojis in federal discrimination lawsuits doubled from 2016 to 2017. Let’s not get crazy. The doubling went from six cases to 12 cases. But, a trend is a trend.

While harassment cases dominate these filings, it’s not just employees who are using 🍆 to establish a hostile work environment. Employers are using employees’ use of emojis to respond to alleged acts of harassment (such as 😄, or 😉, or 😉) to help establish that the alleged hostile work environment was either welcomed or subjectively not offensive.

For example, in Murdoch v. Medjet Assistance (N.D. Ala. 2018), the court held that the plaintiff’s use of a smiley face emoji in a text message to her accused harasser helped establish an absence of a hostile work environment. Similarly, see Bellue v. East Baton Rouge Sheriff (M.D. La  2018) (😉Stewart v. Durham (S.D. Miss. 2017) (😘 and 😉); and Arnold v. Reliant Bank (M.D. Tenn. 2013) (😊).

On the flip side, consider the salacious sexual harassment lawsuit filed against celebrity chef Mike Isabella. According that lawsuit, Isabella referred to attractive female customers as “corn” after one of his chef’s commented that one woman was “so hot, [he’d] eat the corn out of her shit.” The lawsuit alleges further acts of harassment via text messages with with corn emojis 🌽.

Also read: Harassment By Emojis

These cases all beg the questions, “Do you need a workplace emoji policy?” I answered this question in 2017 with an emphatic “NO.”

Most employers already have an emoji policy. It’’s called your harassment policy. You do not need a separate policy to forbid your employees from using what is becoming an acceptable form of communication … .

We can have a healthy debate over the professionalism of emoji use in business communications (like this one). Indeed, according to one recent survey, “nearly half (41%) of workers use emojis in professional communications. And among the senior managers polled, 61% said it’s fine, at least in some situations.” My sense is that your view of this issue will depend on a combination of your age, your comfort with technology, and the age of your kids.

As for me, I use emojis all the time, even at work. Email is notoriously tone deaf. It’s easier for me to drop a 😊 into an email to convey intent than to tone down my sarcasm.

In other words, 😁. Emojis are 👌, and it’s perfectly fine to ❤ them at work 👍.

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