ILMA Compoundings March 2018 - 36

COUNSEL COMPOUND

The Role of Emojis in
Workplace Harassment
By Jeff Leiter

T

his is an important year for
employers as we continue to
learn about more high-profile
sexual harassment incidents and allegations. As more of these cases come to
light, more conversations in businesses
across America have begun to turn
inward and reflect on the actions and
expectations of their own employers
and employees.
In addition to looking closely for
sexual misconduct in the workplace,
employers need to be aware of the
proliferation of employees' use of emojis
in business communications and their
likelihood to convey problematic connotations. As emoji use increases in the
workplace, so do the chances of inappropriate use. Emojis, often viewed simply
as innocuous slang, gain new connotations as their use increases, which can
lead to allegations of sexual harassment,
discrimination, threats and the like.
There has been an uptick in references
to emojis in workplace lawsuits as evidence of a hostile workplace. According
to news reports, emojis or emoticons
were cited in 33 reported federal and
state court decisions in 2017, up from
25 in 2016 and 14 in 2015.
Emojis mean different things to
different people - and the meanings
often depend on the sender's intention and the recipient's interpretation.
There even exists an online emoji
encyclopedia (www.emojipedia.org) to
help folks like me decipher many of
the symbols. With a bit of searching, it
is easy to see how the use of emojis in
business communications can lead to
all sorts of problems.
Extreme care must be taken
concerning emojis used in electronic business communications with
overseas or international customers in

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MARCH 2018

| COMPOUNDINGS | ILMA.ORG

particular; certain hand gesture-related
emojis could mean one thing in the
U.S. and something else entirely to
a recipient in Europe or China. In
some instances, an emoji intended to
convey warmth or friendship could be
interpreted as offensive or showing a
lack of competency.
As the business world continues to
talk more openly about all instances of
sexual harassment, the dialogue about
the numerous connotations of emojis,
many of them sexual in nature, in
business communications also continues to grow.
Consider an emoji depicting a
smiley face making a wink. Could it be
considered a proposition in the context
of the conversation? I've recognized
almost 70 emojis on emojipedia.org
that could easily be used to convey
sexual connotations. Even if not sexual
in nature, emojis can create other
workplace issues. What happens if an
employee sends an emoji to another
worker in which the skin color of the
person depicted is off? Is it an offensive or an ethnic slur?
How about emojis that could be
interpreted as threats? Does the use
of a gun emoji next to the name of a
person convey the possibility of harm
to that person?
So, where does all this leave us? Obviously, consideration of a company's
particular culture is an important starting point. At the same time, it is not
practical to search employees' smartphones and other devices for emoji
use. It is suspect enough to monitor
workers' Facebook or Twitter usage.
To reduce the risk of an adverse court
decision, it makes sense to limit or
discourage business use of emojis to the
greatest extent possible. Eliminating all

emoji use might be difficult. Nonetheless, here are some steps that can be
taken to manage the risks associated
with emoji usage:
* Make sure your electronic communications policies discuss the
use of emojis, including emoji
examples.
* Make sure these policies also
address after-hours electronic
communications with employees,
particularly those who are nonexempt workers.
* Explicitly reference emojis and
other symbols in the company's
anti-harassment and nondiscrimination policies (again,
some examples showing the
symbols would be helpful).
* As part of the training of supervisors and managers, reinforce their
obligations to escalate any report
of harassment, including inappropriate emoji use.
While I do not think we are at the
point where it is necessary for companies to conduct emoji-awareness
seminars, it is appropriate to insist that
all employees remain professional in
their internal and external communications, so that the meaning of the
communication is not misconstrued.
The overarching lesson for employees
is that their workplace communications are not the same as their casual
conversations with friends. Professional, businesslike conversations are less
likely to haunt employers.
Leiter serves as general
counsel to ILMA, representing
the Association since 1981.
He may be reached at
202-466-6502 or jleiter@bmalaw.net.
http://www.emojipedia.org http://www.emojipedia.org http://www.ILMA.ORG
ILMA Compoundings March 2018

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