Emojis and emoticons are cartoon characters used in digital messages to show facts and express feelings or opinions. Depending on the context, they can be happy, angry, and possibly sexually suggestive. Can emojis be used to sexually harass you? With a broad and sick enough imagination, a harasser could do that, but whether it would be enough to base a lawsuit on depends on the circumstances.

What is Sexual Harassment?

Under state and federal statutes, it’s unlawful to harass a job applicant or employee because of their sex. This may include, according to the federal Equal Employment Opportunity Commission:

• Unwelcome sexual advances
• Requests for sex
• Physical or verbal harassment of a sexual nature or about a person’s sex

Harassment becomes illegal if it:

• Is so frequent or severe that it creates a hostile or offensive work environment, or
• Results in an adverse employment decision (being fired or demoted)

Under the law, illegal sexual harassment doesn’t include teasing, offhand comments, or isolated incidents that are not very serious. Often the defense to a sexual harassment claim is the alleged comments or statements weren’t made, or if they were, they aren’t so severe or unprofessional they created an offensive or hostile work environment.

A harasser could be just about anyone in the work environment, including:

• Supervisor
• Co-worker
• Customer
• Contractor

If the harasser isn’t a supervisor, the employer’s liability depends on what management knew about the harassment, when, and what they did in response.

Can Emojis Be Part of Harassing Conduct or Messaging?

Can emojis be part of harassing conduct or messaging? They could, but the devil is in the details. A judge would look at the overall situation, what emojis are used, the context, and the frequency of the incidents. Some federal courts have addressed the issue:

• Bellue v. East Baton Rouge Sheriff: The judge found that a “winking smiley” in text messages along with comments about the plaintiff’s good looks might’ve been offensive or in bad taste but wasn’t severe enough to be illegal sexual harassment
• Allen v Ambu-Stat, LLC: A former employee’s sexual harassment claim was dismissed because the alleged conduct, which included a tongue emoji, physically pointing to the former employee’s groin, and talking about a sexually suggestive song’s lyrics, was not pervasive enough to be actionable
• Mazard-Saintilus v. Miami-Dade County: Part of the plaintiff’s case involved a text including the words, “OMG! You are gorgeous. Damn . . . I need to hit this up” with a red heart and wink face emojis. The court stated it couldn’t find a case where sexual harassment was found based on a single instance where text messages (with emojis) and phone calls during one night outside the workplace constituted sexual harassment
• Mosley v. Preston: The judge decided the severity of the conduct (including text messages with eggplant, peach, dinner plate, and dripping water emojis) was limited, so dismissed the claim
• Herman v. Ohio University: A supervisor sent a female employee text messages at night about her physical looks, asked her to go to dinner with him, sent a winking emoji, and texted her “sweet dreams” after she told him to stop contacting her about non-work matters.  The court ruled the circumstances were objectively and subjectively severe enough to create a hostile work environment

The plaintiff has the burden to prove sexual harassment took place. The difficulty in doing that depends on the facts of the case. In most of these cases, the allegations weren’t enough for the judge to see the situation as sexual harassment.

What Could Make a Difference?

Emojis are subject to interpretation. A peach may just be a peach or the person’s rear end. Sweat may just be sweat, or it may be a woman’s orgasm. The alleged harasser could claim his taco emoji is just a taco, not a reference to female genitalia. If the emoji is an explicit, graphic description of a sex organ or sexual act, it would be much easier to make the case sexual harassment took place.

In these cases, emojis were just part of the communication. If raunchy, emoji-filled texts are accompanied by graphic, unwanted in-person conversations and inappropriate physical touching over a long enough period, a judge or jury would likely find a hostile work environment.

What Kingston Law Group Can Do for You!

The Kingston Law Group helps those subjected to sexual and other workplace harassment. We can answer questions about the law, help you make a complaint to management, negotiate a favorable agreement allowing you to leave your employer, or represent you in litigation.

Contact Kingston Law Group through email (hisaacs@kingstonlawgroup.com) or call us at 609-683-7400. We will schedule a near-term reduced fee initial consultation. We can speak with you on the phone, through a Zoom call, or in person — if you’re vaccinated against Covid-19. We accept credit card payments, and our appointments are from 9 a.m. to 5:30 p.m., Monday to Friday. We can schedule evening appointments during the workweek by special appointment only.

Contact us today. You’ll be glad you did