Phillips & Associates

Emojis and Discrimination

New York City Lawyers Helping Workers Protect Their Rights

People in New York City and elsewhere in the U.S. increasingly use emojis in order to express feelings, ideas, and opinions. While this may be fun in their personal lives, emoji use in the workplace can be unprofessional and potentially offensive. It can even be evidence of illegal discrimination and harassment. While employees may understand that writing out an inappropriate thought is unwise and harmful, they may not realize that using an emoji can have the same effect. If you are concerned about being a victim of discrimination related to emojis, it is important to retain a New York City employment discrimination attorney who stays on the cutting edge of legal developments. At Phillips & Associates, we are experienced litigators who may be able to help you.

Emojis Can Provide Evidence of Discrimination

Workplace exchanges are not confined to the water cooler, and often they take place over instant messaging, such as Skype, WhatsApp, Slack, or even Facebook. Often, people use instant messaging casually, and they may insert emojis, drawings, and pictures that serve as a shorthand.

Many employees understand that it is inappropriate to write emails about a "hot" new intern to each other or to write emails about how they believe that their new coworker might be a terrorist because he is Muslim. They may understand that using the n-word to a black colleague is inappropriate or that calling a disabled coworker a "retard" is offensive. However, they are less likely to self-censor with emojis. While using emojis might seem fun, communications that include emojis are more likely to convey the sender's inappropriate thoughts. The sender may think that he or she is being funny, but the messages may be extremely offensive.

If you were a victim of workplace discrimination or harassment, instant messages that include emojis may be used by your attorney as evidence of the discrimination. In some cases, the emojis may be sent as a form of harassment, while in other cases, they may be evidence of discrimination or harassment that a terminated worker or a worker who was not promoted did not see. Some emojis may involve misgendering, flirtation, or sexual or romantic interest, while others may use a symbol that is offensive, such as a noose or monkey. Or there may be a string of culturally sensitive symbols to create an offensive message about an employee, such as a string of emojis that includes a picture of a person wearing a hijab and a picture of a bomb.

Title VII of the Civil Rights Act, the New York State Human Rights Law, and the New York City Human Rights Law are three of the anti-discrimination laws under which you may have a discrimination, harassment, or retaliation claim. When offensive emojis are sent directly to the victim, and it is severe or pervasive, it may be harassment under all of these three laws. For example, under the New York City Human Rights Law, it would likely be racial harassment for a supervisor to send a black employee a string of emojis that includes a noose, a monkey, and a black emoji person. Also, this same string could be evidence of racial discrimination when sent from HR to a supervisor in relation to a black employee who is about to be terminated. Each case is different, and the nuances of the case will determine whether it should be filed under federal, state, or local law, or some combination of these.

In some cases, for example, the behavior at issue may be so egregious that it is best to file suit under the New York City Human Rights Law rather than the New York State Human Rights Law, since the city law allows for punitive damages, while the state law does not. On the other hand, there may be case law under the New York State Human Rights Law that is more favorable to a particular situation than federal or city laws, and in that case, we might pursue relief under that law.

Discuss a Situation Involving Emojis with an Employment Discrimination Attorney

At Phillips & Associates, our experienced New York City attorneys help clients with matters involving emojis and discrimination. If you have been a victim of workplace discrimination, harassment, or retaliation, contact us at (212) 248-7431 or through our online form for a free consultation. 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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