Whichever language you speak, emoji is now one of them. Whether you’re a full-blown text aficionado and have embraced the new hieroglyphics from the onset or have been a reluctant participant – emojis have arrived and are used in many social media and internet exchanges and have a growing presence in the workplace.
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As the Millenials take over the workforce, the appearance of emojis as part of work communications continues unabated. But what happens when those emotion-laden symbols are overused, misunderstood, or are intentionally used to convey an illegal motive? Like words themselves, emojis have the potential to engender lawsuits and disrupt the workforce and cost businesses time and money.
Although a happy face can help lighten the mood, emojis in work communications should be, at best, limited, and in the main, entirely discouraged. The following are five pitfalls of how emojis could create liability in the workplace.
Pitfall # 1 – “It was just a joke! I didn’t mean it!”
Emojis have no universal definition and are highly subjective. Think of a “winky” face at the end of any sentence. Is the sender treating you as “in the know?” Is it intended to mean the opposite of what is written? As with any oversimplified picture, the recipient can interpret the message in a way that was never intended by the sender.
For sex harassment cases or other such claims, a joking intent does not save a company from liability. What matters is how a reasonable recipient would interpret the message. A sexually suggestive message or seemingly innocuous fruit symbol may have alternative meanings that harass or create a hostile environment. Messages intended as jokes can engender expensive lawsuits and in the context of prior real-world incidents and communications, can be aggregated to create a hostile workplace creating unwanted and expensive claims against the company.
Pitfall # 2 – Ambiguous Messages
Emojis can also be easily misinterpreted and used as evidence in any discrimination case where intent is required. For instance, an exchange between a supervisor and other managers or HR on a 50-year old co-worker’s performance where the “dinosaur” emoji is used could readily support an age discrimination claim that the older worker is simply too slow—a dinosaur. Employees’ attempt at emoji humor can definitely boomerang back when the lawsuit is filed and such messages must be explained away.
Pitfall # 3 – Too Much Kissy Face
Another trap for unwary is the simple use of the “smiley love eyes face” or the “blows kiss smiley face” in almost any context. Exchanges between interviewers of a new candidate that asks – “What do you think of the candidate?” and a response that has the smiley love eyes followed by a message “Ok, then we hire?” and replied to by a smiley face blowing a kiss could readily be taken as sexually suggestive.
The sender may have simply intended to say to his co-worker “You are the best! Go hire the candidate.” but it could also be interpreted to mean that “we need to hire the good looking candidate.”
Pitfall #4 – Texting Too Fast
As emojis proliferate, such as thumbs up symbol in white, brown, black, and every racial color you can think of, the quick selection that mistakenly sends a color not intended could hit the recipient the wrong way. Most senders do not take the time to resend and correct, and by sending an image with the “wrong” color can add to or implicate a race-based claim.
Pitfall #5 – Emoji Speak and Sarcasm
Just as troubling is when texters combine emojis in creative ways. Who hasn’t seen the Bull emoji followed by the “Poop” emoji? Although generally used to convey dissatisfaction, the Poop emoji combined with other characters in the minds of most adults translates to “Bull Sh*t” or with pizza slice emoji as “Piece of Sh*t.” Attempts to combine multiple emojis to spell out words is fraught with danger at every turn, and like so many examples, create ill will or gives credence to discriminatory claims.
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In short, the informality, easily misinterpreted, and otherwise humorous attempts at emoji-speak does not contribute to a productive workplace and should only be shared between friends who will be much more forgiving than the scrutiny of forever preserved evidence in a court of law. An outright ban may be unworkable, but any and all discouragement of emojis as part of work messages is a step in the right direction.
 Walter Foster is a leading attorney in the areas of employment law, business litigation, municipal law, and pension law, providing counsel to both private and public sector employers on the legal and regulatory standards that govern the modern workplace. He has more than 30 years of trial and appellate experience, including business disputes, non-compete litigation, and employment-related disputes and has handled numerous jury trials and public hearings involving claims of sexual harassment, disability, race, national origin, gender, age, sexual orientation, and religious discrimination before state and federal courts, Massachusetts Commission Against Discrimination, and Equal Employment Opportunity Commission.
If you want to get in touch with Foster, you can email him here. |