Is An Emoji Worth A Thousand Words? The Impact Of Emojis In The Workplace

• Published date: 28 March 2022
• Subject Matter: Employment and HR, Discrimination, Disability & Sexual Harassment
• Law Firm: Littler Mendelson
• Author: Ms Rocio Blanco Garcia and Alan Persaud

Work does not always occur within the physical confines of a workplace. Indeed, due to the interconnectivity of today's world, work often takes place in the digital space, where employees regularly use pictorial icons and images known as emojis and emoticons to express themselves. Although emojis and emoticons are not hieroglyphics, they can be difficult to interpret, and courts have increasingly had to grapple with them as evidence in discrimination and harassment claims. So, when does the use of emojis go from to ? When is more than a cheeky gesture between colleagues?

The answer, as is often the case, depends on context and frequency of use. But, as the years go by and emojis work their way into legal decisions with increasing frequency, employers can be sure of one thing - there are workplace risks associated with emojis.

Can Emojis Help Create Severe or Pervasive Conduct in Violation of Anti-Harassment Laws?

Courts have found emojis particularly relevant when analyzing the "severe or pervasive" prong of a harassment claim. An employee claiming hostile work environment harassment in violation of Title VII of the Civil Rights Act must show that the work environment is permeated with "discriminatory intimidation, ridicule, and insult" that is sufficiently "severe or pervasive" to alter the conditions of the employee's employment and create an abusive working environment.¹

In Bellue v. East Baton Rouge Sheriff,² the Middle District of Louisiana found that a "winking smiley" () coupled with commentary about a plaintiff's good looks could be regarded as flirtatious, but that such "insensitive, boorish, uncouth, or even offensive" conduct, standing alone, did not rise to the level of sexual harassment. Similarly, in Allen v Ambu-Stat, LLC, the U.S. Court of Appeals for the Eleventh Circuit found that a former employee's sexual harassment claim failed because the conduct at issue, which included the use of a tongue emoji, pointing at the former employee's groin area, and making remarks about a sexually suggestive song's lyrics, was not sufficiently pervasive to be actionable.³ Last year the Southern District of Florida in Mazard-Saintilus v. Miami-Dade County,⁴ dismissed a sexually hostile work environment claim based in part on this text to a high-school employee: "OMG! You are gorgeous. Damn . . . I need to hit this up" accompanied by a "red heart" emoji and a "wink face" emoji. The court said it could not find a single case where text messages (including...