Can Using an Emoji Land You in Court?

Take a minute and glance at your text messages, peruse social media, review your emails (both professional and personal). It’s almost certain that you’ll find little emojis littered throughout an otherwise dry or short communique.

Emojis, or those little digital images formerly known as “emoticons,” were born in order to help provide more meaning and tone to the unfeeling landscape that is our current text-based communication.

Emojis have become such a part of our common parlance they even had their own feature film this summer, The Emoji Movie, and the word “emoji” was Oxford Dictionary’s Word of the Year in 2015. With a now estimated 2,600 emojis (and counting) in use today, according to the Unicode Consortium, it’s no wonder they’re making an appearance in U.S. courtrooms.

With the prevalence of electronic communication in the workplace—email, text messaging, and internal corporate instant messaging on platforms like Google Hangouts and Slack—employers must be proactive in determining how to deal with emoji usage in the office.

Just like any other language, employees using emojis in the workplace could result in liability for the employer. Emojis can be interpreted as threatening (the weapons, for example); harassing or hostile (particular fruit or vegetable emojis refer to parts of human anatomy), or discriminatory (imagine the use of a grey-headed, bespectacled emoji with respect to an older employee).

Being picture-based and therefore subject to differing interpretations, an otherwise innocuous winking or smiling face might be interpreted as something more sinister in a suit for gender discrimination or sexual harassment. Even more challenging is that a user may send one emoji but the recipient receives another, depending upon the devices used or software versions of the sender and recipient.

In a recent interview with The San Francisco Chronicle, Alden Parker, a partner at the law firm Fisher Phillips, said he’s seen emojis used as evidence of discrimination and harassment in employment cases.

Parker said emoji senders “sometimes misgender someone or don’t use the correct (skin) pigmentation or they use a symbol that has another meaning that is offensive and inappropriate. Maybe they didn’t mean it, maybe they did. But that’s typically where we see problems arise.”

An emoji recipient might end up feeling confused at best, or offended or frightened, at worst. So what’s an employer to do?

Some attorneys and HR professionals recommend banning emojis from the office altogether. This may not be practical given their prevalence, but might be advisable. A recent study in Social Psychological and Personality Science found that using an emoji could make one appear incompetent: "Although smileys may help convey a positive tone in written messages, their adverse effects on first impressions of competence may outweigh these benefits...”

Employers might also consider limiting the emojis that may be used in work-related correspondence to help curb any chances for misuse or misinterpretation. The innocuous smiley 😃 or “thumbs up” 👍 seems less susceptible to the varied interpretations of other emojis.

At the very least, it’s important to remind employees that all correspondence—including and especially emoji use—must adhere to guidelines set forth in your company’s employee handbook.

And in the very true words (and emoji) of Julia Greenberg from Wired:

“…remember, anything you ;) can and will be used against you in a court of law – but, that’s true of what you say, too. ¯\_(ツ)_/¯.”

Employer Action Item:

Update your employee handbook to include an emoji-use policy for both work-related email and text message correspondence if it doesn’t already have one. Consider whether to completely eliminate the use of emojis in work-related correspondence or to restrict the types of emojis which may be used.

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