As emojis have morphed from a cute novelty into a staple element of business communication, they have begun to pose liability risks to companies. Many of these risks stem from the fact that emojis lack universal definitions, can have multiple — often subjective — meanings, and look different on different messaging platforms. This means that emoji use can easily lead to misunderstandings between sender and recipient, which in a business setting can have consequences ranging from contract claims to allegations of harassment and discrimination. Business litigation in which emojis are key evidence has increased significantly in recent years, and shows no sign of abating. Employees’ use of emojis to supplement text or provide an emotional valence can also enhance liability risk. This occurred memorably in Apatoff v. Munich Re America Services, where the use of emojis by managers led to denial of a company’s motion for summary judgment against a claim of wrongful termination under the Family Medical Leave Act. 2014 U.S. Dist. LEXIS 106665 (D.N.J. Aug. 1, 2014). As the court’s opinion explained:
Ms. Scerbo began her email with a “smiley face emoticon,” asking “:-)) did Ray chat with you about Elena?” Plaintiff argues that this is a reference to Plaintiff’s termination, to which Mr. Mauch responded “Yes he did. Thank you for your help. That deserves a big :-))!!!” The Court believes that a reasonable jury could find that the “emoticons,” attached to the emails of two Munich Re managers late in the day on which Plaintiff was terminated, are evidence that the decision makers at Munich Re were happy to be able to terminate Plaintiff.
The court found that the managers’ evident happiness contradicted their testimony regarding Plaintiff’s termination, thus precluding summary judgment. The emojis were the key evidence cited by the court.
Emojis have also played roles in sexual harassment cases. In one recent case, the court granted the employer’s motion for summary judgment on a terminated employee’s sexual harassment claim noting that the employee could not show that that her supervisor’s conduct had been “unwelcome” because she had engaged in flirtatious conduct toward him as evidenced, in part, by the smiley faces in the messages that she sent to him. (Summary judgment on Plaintiff’s retaliation claim, however, was denied because the court found an issue of fact on whether she was terminated because she complained). One can easily see how a supervisor’s use of emojis could end up supporting a claim of sexual harassment.
Given the problems that can arise from emoji use in the workplace, even when the emojis are correctly interpreted, companies would be wise to consider implementing emoji-use policies. It may be most prudent to prohibit the use of emojis in employees’ business communications, whether with customers or other employees. More technically advanced companies can also disable the use of emojis on their systems. Although these steps themselves cannot eliminate inappropriate workplace conduct, they are at least a step toward eliminating (or at least curtailing) emojis as a source of liability risk.