Phillips & Associates

Emoji Sexual Harassment

Employment Lawyers for Residents of New York City and Surrounding Areas

Emoji use has proliferated, and many people use emojis casually, sometimes even in the workplace. However, emoji meanings are complicated and sometimes ambiguous. They can easily be misinterpreted, or used by some people as a way of conveying information or an emotional tone that they would understand is inappropriate to convey through language. Among other things, emojis are sometimes used to flirt, make advances, or harass another person. If you believe that you have been a victim of sexual harassment involving emojis, you should consult the experienced New York City sexual harassment lawyers at Phillips & Associates.

Sexual Harassment Based on Emoji Use

Employers can be held liable for emoji sexual harassment conducted through direct messages on Twitter, chats, texts, or the notorious Facebook “others” inbox. However, these are complicated cases. In some cases, a wink emoji is simply a sign of humor, but in other cases, it is a come-on. Some emojis have gained inappropriate connotations, such as the eggplant, which is now used to represent sexual interest and male genitalia.

Emojis used in the workplace can constitute sexual harassment. Sexual harassment is a form of sex discrimination that is prohibited under Title VII of the Civil Rights Act, the New York State Human Rights Law, and the New York City Human Rights Law. It can include requests for sexual favors or unwelcome sexual advances, either of which may be conveyed through emojis or through a combination of emojis, words, and behavior. In some cases, a harasser is a supervisor, manager, or other person who has power over you in the workplace, while in other cases, it is a customer, client, or coworker.

Workplace sexual harassment can be quid pro quo or hostile work environment harassment. Quid pro quo harassment occurs when an employment decision is made contingent on your response to unwanted sexual conduct. For example, if you are expected to perform blowjobs for a supervisor in order to get a promotion, our attorneys could bring a claim based on quid pro quo harassment. In such cases, the emojis used may be explicit or coded through seemingly innocuous or ambiguous symbols that are understood in a larger context involving physical gestures or words.

Hostile work environment harassment involves unwelcome behavior that unreasonably interferes with your ability to do job tasks or creates a hostile or intimidating work environment. It can consist of sexual jokes, propositions, texts, emails, or questions about sexual history or your clothes. Being flooded with sexual emojis by a coworker could constitute sexual harassment.

If you are being sexually harassed, it is important to tell the harasser to stop. Sexual harassment is only actionable if it is unwelcome, and often harassers claim that they did not know that the behavior was unwelcome. Sometimes victims of harassment do not confront their harasser because they are afraid to do so, or for any number of other legitimate reasons. However, a harasser's argument may be persuasive to a court if you laughed or flirted back as a way of keeping the peace. If you clearly state that the behavior is unwelcome, any emojis or offensive actions taken by the harasser after that are sent knowing that they are unwelcome. Assuming that you have an employment handbook, it may include a section advising on what to do to file a grievance about sexual harassment.

You should also memorialize the problem to HR in writing so that there is a record that your employer got notice of the harassment. You can provide any messages that include the offensive emojis, and when the emoji is ambiguous, you should describe which behaviors or language give the emojis the context necessary to understand them as sexual harassment. Notice to your employer triggers a duty to investigate and respond to the harassment appropriately. If a written notification is not provided, the employer may claim that it did not know about the harassment.

Understand Your Options by Contacting a New York City Lawyer

At Phillips & Associates, our attorneys assist workers throughout New York City and surrounding areas with litigation based on sexual harassment involving emojis. For a free consultation, contact us at (212) 248-7431 or through our online form. We handle employment litigation in the Bronx, Queens, Brooklyn, and Manhattan, as well as in Westchester, Nassau, and Suffolk Counties and in New Jersey.

PHILLIPS & ASSOCIATES
45 Broadway, #620,
New York NY, 10006
Tel: 212-248-7431
Fax: 212-901-2107
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