Can emojis be sexual harassment? Courts say maybe

In the widespread remote work era, employees are communicating digitally more often than in person.

And while tools like Slack can be incredibly useful to help workers collaborate remotely, it also comes with a heightened risk of something employers may not have considered — harassment via emojis.

The issue is, emojis can often have deeper meanings (eggplants and peaches are rarely used to indicate the foods) but these multiple meanings are left up to interpretation.

Did someone send a winking emoji to emphasize a joke? Or was that wink suggestive? And are a few suggestive emoji messages enough for an employee to establish a harassment claim?

Here are a few court cases where emoji harassment was front and center.

Not pervasive enough

In Bellue v. East Baton Rouge Sheriff, an employee took her employer to court for sexual harassment after a colleague sent her a message commenting on her good looks, followed by a winking emoji.

While the court noted that message could be considered “insensitive and uncouth,” it decided the message didn’t meet the threshold to be considered harassment.

There were several other cases similar to this, where employees received heart emojis, tongue emojis and kissing emojis — but courts again ruled that none of these instances were severe and pervasive enough to constitute sexual harassment.

It’s important to note that, while in all of these instances the emojis weren’t considered harassment, if there were several instances of these emojis being used, that might’ve been enough for the ruling to go the other way.

Emoji policies

So, what can employers take from this? Even if it doesn’t go as far as a courtroom, emoji use can cause issues in the workplace. Digital communication already runs the risk of misunderstanding, since senders’ tone can’t come through texts and emails. Adding emojis with double entendre into the mix can lead to major conflicts.

It’s a good idea for HR pros to add a section in the employee handbook addressing emojis and professionalism. Let employees know that the use of emojis runs the risk of misinterpretation, which could lead to harassment claims.