By: Victoria Ciminera
In our digital age, lawyers are introducing new evidence: emojis. Judges are encountering new challenges interpreting these characters in employment lawsuits.[1]
Function of Emojis: Emojis are “symbols, or icons used . . . in electronic communication . . . to express the emotional attitude of the writer . . . [and] communicate a message playfully without using words . . . .”[2] With the increased use of online communication including gifs, bitmojis, and emojis, employers face new expectations pertaining to their social media and harassment policies.[3] Including clear expectations about emojis in workplace communication can help to maintain a professional environment and prevent these icons from being used inappropriately.[4]
Emojis go to Court: Emojis have been admissible evidence in workplace lawsuits, specifically sexual harassment cases.[5] In the workplace, use of emojis including the “kissing face, stuck-out tongue, wink, smile, smirk and angry face” can be interpreted in various ways, which may lead to harassment complaints in the workplace. This leaves the courts with the power to set new precedent when deciphering the intent of a message accompanied by emojis.[6]
Interpretation of Emojis: Case law has created differing interpretations of emojis, and lawyers and judges continue to disagree over their meanings and if they alter the meaning of a text.[7] Courts must determine if the intent of the emoji indicates unwanted advances, which is a required element for workplace harassment cases.[8] In Herman v. Ohio University, text message evidence including a “winking emoji” accompanied by the phrase “sweet dreams” strengthened the employee’s sexual harassment claim against her employer. [9] In contrast, an employee’s sexual harassment claim failed in Murdoch v. Medjet Assistance, LLC, because the court concluded that the employee’s use of smiley face emojis indicated that the employer/employee conversation was welcomed by the employee.[10]
Future of Emojis in the Legal System: There is no universal interpretation of digital communications but emojis will continue to be interpreted based on surrounding circumstances, related text, the age of the sender and the platform.[11] As communication becomes “more visual and less textual,” employers and employees will have to adapt to technological changes by addressing emoji etiquette in their workplace policies.[12]
[1] Olga V. Mack, Emojis and Visual Literacy: A Guide for Lawyers, Bloomberg Law, (June 21, 2021, 4:00 AM), https://news.bloomberglaw.com/us-law-week/emojis-and-visual-literacy-a-guide-for-lawyers
[2] Emoji, Merriam-Webster Dictionary (https://www.merriam-webster.com/dictionary/emoji).
[3] 167 Am. Jur. Trials 305 Emojis and Emoticons §2 (2020).
[4] Maureen Minehand, Could an Emoji Bring You Down?, 334 Employment Law Counselor NL 1 (2018).
[5] Goldberg Segalla LLP, A New Trend: Emoji Lawsuits, Lexology (Aug. 5, 2019), https://www.lexology.com/library/detail.aspx?g=f8bfbcd0-2af6-4b78-a5ca-9ed26a028b93.
[6] 167 Am. Jur. Trials 305 Harassment §12 (2020).
[7] Olga V. Mack, Emojis and Visual Literacy: A Guide for Lawyers, Bloomberg Law, (June 21, 2021, 4:00 AM), https://news.bloomberglaw.com/us-law-week/emojis-and-visual-literacy-a-guide-for-lawyers
[8] Lee Smith Publishers LLC and Coughlin & Gerhart, LLP, If a Picture Paints a Thousand Words, What’s Wrong With Emojis?, 25 No. 4 N.Y. Emp. L. Letter 3 (2018).
[9] Herman v. Ohio Univ., No. 2:19-CV-201, 2019 WL 6255719 (S.D. Ohio Nov. 22, 2019).
[10] Murdoch v. Medjet Assistance, LLC, 294 F. Supp. 3d 1242, 1261 (N.D. Ala. 2018).
[11] Heather King, Emojis and Emoticons: Interpreting Digital Wordless Communications, ABA, (Apr. 5, 2022), https://www.americanbar.org/groups/gpsolo/publications/gp_solo/2022/march-april/emojis-and-emoticons-interpreting-digital-wordless-communications/
[12] Maureen Minehand, Could an Emoji Bring You Down?, 334 Employment Law Counselor NL 1 (2018).
