A Double-Edged Smiley? Emojis in Employment Suits Cut Both Ways

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By Genevieve Douglas and Jay-Anne B. Casuga

Digital smiling faces, winks, corn cobs. Seemingly innocuous emoticons or emojis can now be friend or foe for both employers and employees in the courtroom.

The number of employment cases that include allegations of improper emoji use as evidence of discrimination, harassment, or retaliation is small in comparison to the hundreds filed every year. However, mentions of emojis in federal discrimination lawsuits doubled from 2016 to 2017, according to a Bloomberg Law analysis. This year alone, high-profile companies like ESPN, Canon, and even a former Bravo Top Chef are facing such claims.

Here’s a twist—businesses also use emojis to get lawsuits against them thrown out. At least five employers have done so in the past few years, according to Bloomberg Law research.

“Emojis are going to be increasingly at issue in our cases,” Debra Katz, a plaintiffs’ attorney and partner with Katz, Marshall, & Banks LLP in Washington, told Bloomberg Law.

This jump in emoji use in part reflects the new, more informal ways in which people communicate today, but it also means human resources professionals may have a new language in which they must be fluent: emoji.

“The idea that a picture is worth a thousand words does apply to emojis because they can affect the intent of a message,” Susan Bassford Wilson, e-Law Practice Group chair for management-side Constangy, Brooks, Smith & Prophete LLP in St. Louis, told Bloomberg Law.

Some employers have found that emojis may bolster their case to disprove a harassment claim by arguing that someone who felt they were in a hostile work environment wouldn’t use smiley, winking, or laughing faces in their communications with an alleged harasser.

It’s an interesting situation for employers, because everyone interprets these pictures differently, Wilson said. But by looking at the totality of what’s being decided or discussed, “the meaning of the emoji can be clear,” Katz said.

All About Context

A winking emoji by itself, for example, may be harmless. When allegedly included in a message from a male supervisor asking a female subordinate to “dirty text,” the emoji may potentially be evidence of harassment. This kind of allegation, among others, appeared in a sexual harassment lawsuit filed against Canon U.S.A. Inc. last month.

Similarly, people might not think twice about receiving a corn cob emoji in a text message. But if that corn cob is a “vulgar reference” to sex, it potentially could find its way into a lawsuit, like it did in a complaint filed against celebrity “Top Chef” contestant Mike Isabella earlier this month.

In that lawsuit, a female restaurant official’s allegations included receiving corn emojis from Isabella, in reference to a story he told about another chef who supposedly described a woman as “so hot, [he’d] eat the corn out of her shit.” Isabella and other men also allegedly referred to attractive women as “corn,” the complaint says. Katz represents the employee who brought the sexual harassment lawsuit against Isabella.

Since 2010, employees have filed at least 39 federal discrimination, harassment, or retaliation lawsuits that include emojis or emoticons in their allegations, according to Bloomberg Law docket information. The majority (30) were brought under workplace anti-bias laws, but emojis also have popped up in medical leave, wage-and-hour, and other labor complaints.

Only two such lawsuits were filed each year between 2010 and 2011. Three were filed each year between 2012 and 2015. By 2016, that number had grown to six and then doubled to 12 in 2017. So far in 2018, five such suits have been filed.

Employers Win With Emojis, Too

Emojis alone likely won’t be enough for a worker to win a harassment claim in court. Employees have to show that any alleged harassment, emojis included, all together was severe enough or occurred frequently enough to send the claim to trial. They also must show they are subjectively offended by the harassment.

Employee wins haven’t happened often, according to a Bloomberg Law analysis. Since about 2012, federal trial courts have issued eight rulings on the merits in discrimination cases in which emojis played a role in the allegations.

Emojis helped employees survive dismissal in only two cases: a 2014 medical leave case and a 2012 harassment case. Both of those reached settlement.

A lesbian employee in 2016 lost her sexual orientation harassment case in 2016, with a court ruling that her allegations—which included text message exchanges with a male co-worker that featured scissor emojis—weren’t severe enough to establish a hostile workplace.

On the flip side, employers in five of the eight rulings relied on an employee’s use of emojis to defeat discrimination and harassment claims.

For instance, a federal judge in Alabama last month held that a female worker’s use of smiley face emojis in messages responding to a male official, as well as evidence of her hugging him and calling him “my dear,” showed she wasn’t personally offended by his alleged harassment. Federal courts in Missouri, Mississippi, and Tennessee reached similar conclusions in harassment cases. A public employer in Illinois also used a worker’s emoji use in an email to help defeat a federal disability discrimination claim.

Employers often use emojis in text exchanges where an employee responds with a smiley face as proof of welcoming sexist remarks or banter, but the reality is the employee is frequently using the emoji as a way to reject and de-escalate the exchange instead of being forthright, Katz said. “Sometimes the emoji is the path of least resistance to not anger their bosses or colleagues.”

Translators Needed

So what should an HR department do? Despite the potential challenges emojis bring to employee communication, human resources departments should resist the urge to create policies and guidelines around their use, Wilson said.

Instead, HR should remind employees that all communications—regardless of form or format—must be done in a way that is consistent with existing behavioral expectations. “Whether it’s smoke signals or emojis, harassing your co-workers is inappropriate,” Wilson said.

When there are common sense HR policies that say expressly “you may not engage in unwelcome propositions, unwelcome banter” or other interactions, that should be enough to outlaw the inappropriate behavior, Katz said. Given how often emojis are appearing in cases, however, Katz recommended adding them as a part of HR or manager training.

Wilson suggested that “translators” also be on hand to help HR professionals understand the emoji or emoticon meanings. “If you don’t feel like you are fluent in emoji, you may be well served calling in a colleague who is fluent to assist with the investigation,” she said. “This is yet another iteration of the digital workplace presenting a challenge that an HR person can find their way through if they look back to the tried and true principles.”

To contact the reporters on this story: Genevieve Douglas in Washington at gdouglas@bloomberglaw.com; Jay-Anne B. Casuga in Washington at jcasuga@bloomberglaw.com

To contact the editors responsible for this story: Jo-el J. Meyer at jmeyer@bloomberglaw.com; Martha Mueller Neff at mmuellerneff@bloomberglaw.com

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