Many sexual harassment claims involve patterns of inappropriate comments. When assessing whether comments are inappropriate and of a sexual nature, New York City sexual harassment lawyers must consider verbal cues, body language, and facial expressions. Most or all of those cues are missing, however, in written communications. This is particularly true when emoji symbols are involved. “Emoji sexual harassment” is a relatively new, but quickly growing, area of law. Some lawsuits include emoji among the alleged inappropriate comments, often based on secondary meanings ascribed to particular symbols. At the same time, some courts have cited plaintiffs’ use of emoji when ruling for defendants.
Sexual harassment is a form of sex discrimination in violation of the New York City Human Rights Law (NYCHRL), the New York State Human Rights Law (NYCHRL), and Title VII of the Civil Rights Act of 1964. Unlawful sexual harassment generally takes two forms. “Hostile work environment” occurs when pervasive and unwelcome sexual behavior interferes with a person’s ability to do their job. “Quid pro quo sexual harassment” occurs when submission to some form of sexual activity is made a condition of obtaining or keeping employment. Unwanted sexual remarks or overtures are a common feature of both types of sexual harassment claim.
Emoji are a set of small images that can be inserted into text messages on smartphones, as well as in emails and social media services like Facebook. Certain symbols have taken on specific meanings. An article in Wired describes the symbols as “a primitive language.” As a result of this, the inclusion of emoji in a text message can convey unintended meanings, or plausibly-deniable meanings. Emoji symbols that depict objects that might be considered phallic, such as the corn and eggplant symbols, have taken on that secondary meaning. Even symbols that seem to have obvious meanings, like the “smiley face” emoji, can be subject to multiple interpretations.