The Role of Emoji in New York City Sexual Harassment

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.

It does not appear that any reported cases from New York have dealt with emoji sexual harassment, but it has appeared in multiple lawsuits and court decisions. A sexual harassment lawsuit against a restaurant owner alleged a widespread pattern of offensive sexual comments, including multiple “text messages with corn emoji pictures.” Caras v. Isabella, et al, No. 1:18-cv-00749, complaint at 14 (D.D.C., Apr. 3, 2018). The defendant settled that lawsuit about a month after it was filed. A Louisiana case included allegations of “unsolicited text messages…accompanied with a winking smiley emoji.” Bellue v. East Baton Rouge Sheriff, No. 3:17-cv-00576, order at 1-2 (M.D. La., Sep. 13, 2018). The court held that the plaintiff had not alleged a hostile work environment within the meaning of Title VII, but gave her leave to refile.

Courts have also found that emoji use can weigh against a plaintiff. In a claim for intentional and unintentional infliction of emotional distress, the court noted that the plaintiff had sent several emoji to the defendant after the alleged acts, and held that “these responses do not indicate distress.” Stewart v. Durham, No. 3:16-cv-00744, order at 2 (S.D. Miss., Jun. 9, 2017). A court dismissed a sexual harassment claim partly based on the plaintiff’s use of the “smiley face emoji” in several communications with the alleged harasser. Murdoch v. Medjet Assistance, LLC, 294 F. Supp. 3d 1242, 1253-54 (N.D. Ala. 2018).

The experienced and skilled employment attorneys at Phillips & Associates represent New York City employees, former employees, and job applicants. Please contact us today online or at (212) 248-7431 to schedule a free and confidential consultation to see how we can help you.

More Blog Posts:

Lawsuit Alleges Sexual Harassment by Assistant Principal at New York City School, New York Employment Attorney Blog, February 20, 2019

Increased Attention to Workplace Sexual Harassment Leads Some New York City Employers to Contemplate Other Forms of Sex Discrimination, New York Employment Attorney Blog, January 15, 2019

New York City Jury Awards $1.25 Million in Damages to Professor for Retaliation Claims, New York Employment Attorney Blog, January 8, 2019

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