Harassment by emojis – the newest headache for HR

By Kristen Cifolelli, courtesy of SBAM Approved Partner ASE

Several weeks ago, in EverythingPeople This Week!, we reported on studies that showed that when an employee uses emojis in their work communications it can actually make them look less competent.  Aside from the impact to an employee’s reputation, there is a more sinister issue HR needs to be aware of.  Emoji use has now become another potential avenue for sexual harassment.
 
According to a 2017 survey conducted by Harris Poll on behalf of Tenor, a mobile GIF sharing platform, 71% of Americans use emojis, stickers, or GIFs when texting or using mobile messaging apps.  Once mainly for personal use, emojis have made their way into the workplace. When it comes to how often emojis are used at work, a recent OfficeTeam Study found that nearly half of workers (41%) use emojis in professional communications.  
 
While emojis can be fun and add levity to the work environment, emoji use is basically another form of slang.  It can be very subjective.  What is appropriate to one employee may be offensive to another.   There are even different cultural interpretations of emojis.  A “hands-of-praise” emoji in the U.S. is offensive and a sign to dismiss people in China.  In order to help provide guidance and interpret the various emojis, there is actually a website called emojipedia to assist with proper emoji use.  According to the website, 157 new emojis will be arriving in 2018.
 
With the widespread use of emojis in the workplace, employers should consider developing guidelines regarding their use.  Emojis, by their very nature, are meant to convey thoughts in a humorous manner, but they also can have a tendency to convey inappropriate content.  Using the wrong emoji could be seen as evidence of a hostile work environment, discrimination, or sexual harassment.
 
According to Kelly Hughes, Shareholder at law firm Ogletree Deakins, “We are not only looking at words anymore; we now have symbols.  It’s not a legal requirement, but it would be a good idea to review electronic communication policies and make sure it includes the use of symbols.  I think it’s become prevalent enough that it would be a good business practice to do so.”
 
Over the last several years, employment lawyers and human resource professionals have reported that harassment claims involving text messages conveying flirtation or sexual connotations are on the rise.  While using overtly sexual pictures and graphics would be certainly be prohibited, more ambiguous emojis such as the “winky face,” or an emoji with a tongue sticking out, can be open to interpretation or misunderstanding.
 
Scott McIntyre partner at law firm BakerHostetler provided his thoughts regarding emoji use, “There have been numerous cases that involve the use of emojis as well as ‘likes’ on social media that involve claims of harassment.  Such communications have been cited by employers as evidence of a hostile environment.”   While using a “winky face” at the end of an email in and of itself does not constitute sexual harassment.  But ongoing pervasive and escalating use of emojis, for example, starting with smileys and going to hearts, and then to “kissy face” emojis can be evidence of a hostile work environment.
 
On the flip side, emoji use has also been used as a defense against harassment claims.  In 2015, a student at Western New England University brought a claim seeking injunctive relief and monetary damages against the university, claiming that he had been wrongfully accused of sexual misconduct and citing his accuser’s “positive emojis” as evidence of their mutual consent.
 
So, when it comes to emoji use, what should HR be doing?