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Harassment Via Emojis is Nothing to LOL About
by Judy Kneiszel

A female employee shows an HR manager a text message.

The employee’s boss had responded to a text confirming the completion of a job task with a kissy-face emoji. She says the emoji made her feel uncomfortable.

Was the boss simply communicating appreciation? Did he accidentally click on the wrong emoji? Or was he sending an inappropriate message to a subordinate?
Could the employee make a case that a text without words is harassment?

The case for emoji cases
For the past 15 years, Santa Clara University law professor Eric Goldman has been counting the number of court cases that reference emojis. The number has nearly quadrupled, from 14 in 2015 to 53 in 2018. Some of the cases were harassment cases.

In the abstract of his “Emojis and the Law” paper, Goldman wrote, “Emojis are an increasingly important way we express ourselves. Though emojis may be cute and fun, their usage can lead to misunderstandings with significant legal stakes — such as whether someone should be obligated by contract, liable for sexual harassment, or sent to jail.”

As the number of emojis available on phones and in software programs has multiplied, so has their use. Emojis have been created to represent everything from facial expressions and hand gestures to symbols. It’s possible to convey an entire message without using a single word.

Because employee communication has evolved to include this growing number of emojis, workplace communication policies must evolve as well. What can employers do?

To reduce the risk of harassment via emoji:
  • Have strong electronic communication policies that incorporate your company’s anti-harassment and anti-discrimination policies.
  • Review company handbooks and policy manuals to ensure that anti-harassment language covers inappropriate, harassing, or offensive use of text messages and emojis.
  • Train employees and supervisors to recognize harassment in any form, including via emoji.
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