What did that winking emoji sent by a supervisor to a subordinate really mean? Does a winking face, shocked face, sick face, broken heart, clouds, etc., mean different things to different people? To the chagrin of employment attorneys, communication in the digital age has become increasingly informal. You have probably heard our warning in the past not to send e-mails or text messages that you would not want enlarged and used as a trial exhibit in a court case or an arbitration hearing. How does the use of emojis fit into this cautionary advice?
Merriam-Webster’s Dictionary defines an emoji as, “any of various small images, symbols, or icons used in text fields in electronic communication (as in text messages, e-mail, and social media) to express the emotional attitude of the writer, convey information succinctly, communicate a message playfully without using words, etc.” As emojis become more nuanced and continue to evolve from the simple, prototypical smiley face (though maybe that smiley face is not so simple after all) to a whole range of facial expressions, hand gestures, objects, food, flags, etc., a question arises of whether emojis can actually convey motive, intent, or even consent. According to various federal court decisions, the answer is “yes.”
According to a Bloomberg Law analysis, mentions of emojis in federal discrimination lawsuits doubled from 2016-2017. In Apatoff v. Munich RE Am. Servs. Inc., a 2017 case arising out of New Jersey, plaintiff alleged her employer terminated her in retaliation for taking leave under the Family and Medical Leave Act. Plaintiff’s claim survived dismissal, in part, because the court held a reasonable juror could find that the smiley face emojis in an email exchange between two managers, late on the day on which plaintiff was terminated, was evidence that the employer’s decision-makers were happy about terminating her. Thus, context rendered a seemingly innocuous smiley face emoji into a key piece of evidence demonstrating retaliatory motive.
Also, in Mims v. Chilton Med. Ctr. and Sunlink Health Sys., Inc., a 2014 case arising out of Alabama, plaintiff alleged that she was terminated as a result of rejecting her supervisor’s advances. The supervisor had sent plaintiff a text message containing an emoji, which the plaintiff interpreted to mean, “I love you.” Although the court did not identify what specific emoji the supervisor used, the court agreed that it could be interpreted to mean, “I love you,” lending credence to plaintiff’s claim that her supervisor, was indeed, “making advances.”
Emojis have not been all bad for employers, however. For example, in Stewart v. Durham, a 2017 case arising out of Mississippi, a female job applicant alleged sexual harassment and emotional distress against defendant employer and one of its employees who had sent her an inappropriate picture requesting sexual favors in exchange for a job interview. The federal court dismissed the plaintiff’s emotional distress claims noting her response—a blowing kiss emoji and three winking emojis—was not indicative of someone experiencing emotional distress. Also, in Mooneyhan v. Telecomm. Mgmt., LLC, a 2017 federal court case arising out of Tennessee, the court held that plaintiff’s sexual harassment claims were undermined, in part, by her concluding emails to management with smiley face emojis during the relevant time period.
One way to avoid ending up in a courtroom arguing over an eggplant emoji is adhering to the general principles of maintaining professionalism (and civility) in the workplace, including in email and text message exchanges. This adherence must start at the top. Managers must be thoughtful before sending email or text messages—take time when writing any communication and do not rush to hit the “send” button. If you are using an emoji in an email or text message, consider whether its use is professional and whether it could be confusing or ambiguous. Also, does emoji use open the door to even more casual exchanges which in turn, could lead to less professional, and overly casual, standards in your workplace with respect to communications?
In addition to your own communications as a Manager or HR professional, you should also be cognizant of whether your employees are sending unprofessional e-mails or text messages, and if they are, explain to them why their communications are unprofessional and inform them of the municipality’s standards of professionalism. Lastly, your anti-harassment policy and training should include information on appropriate use of e-mail, text messaging and social media. Your anti-harassment training should also include general principles of workplace civility and professionalism as well. Municipalities should contact their legal counsel to ensure that their anti-harassment policy is up-to-date and to arrange for regular anti-harassment training.