By: L. David Russell
August 21, 2019
Emojis often help convey intent and emotion in non-face-to-face communications. A ;) [a wink] or a :) [a smile], for example, can help evoke an emotional subtext to a typewritten message. According to emojipedia, there are over 3,000 emojis. While emojis are powerful, helpful, and fun tools used in day-to-day communications, courts are increasingly being charged with the task of interpreting emojis that make their way into the evidentiary record. This is especially true in employment-related cases.
Origins Of The Emoji
The very first emoji was created in 1999 by Shigetaka Kurita, a Japanese artist working on “i-mode,” an internet platform for Japan’s mobile carrier DOCOMO. He wanted to create an interface on the platform that could convey information in a simple manner to users; accordingly, he drew 12x12 pixels of different types of images –ranging from technology (TV, Gameboy, telephone) to sports equipment (baseball, tennis racquet, soccer ball) to different types of heart shapes and facial expressions.
While such emojis became wildly popular in Japan, it was not until around 2011, that the emoji really took off in the U.S. when Apple incorporated the emojis into its iOS messaging app.
Kurita’s original 176 emoji collection is now a permanent fixture at the Museum of Modern Art in New York:
Emojis Are Increasingly Turning Up In Court
“The number of reported cases with emojis as evidence in the United States increased from 33 in 2017 to 53 in 2018, and is at nearly 50 so far in the first half of 2019, according to Eric Goldman, a Santa Clara University law professor who monitors court opinions that are made public.”
Given the novelty of emojis, courts lack guidelines or legal precedent on how to interpret or treat them. If an employer sends to an employee a string of winky face emojis along with other endearing messages containing hearts and martini glasses, would that be sufficient to demonstrate sexual harassment by the employer? Indeed, there are plenty of examples where seemingly innocuous symbols or images – such as an eggplant, taco, snake, corn husk, or honeypot – have been used to convey sex. In 2017, BuzzFeed published an article displaying “69 Emoji Combinations That Symbolize Sexual Acts.” So, how are courts to understand intent and meaning behind these symbols when evaluating cases?
In 2018, celebrity chef Mike Isabella and his restaurant group were sued for sexual harassment by a former employee. Among other things, the employee alleged that Isabella and some of his male partners often sent text messages using the “corn” emoji to refer to female customers that they thought were attractive. Isabella allegedly explained that “corn” referred to a comment made by one of his chefs, who commented that a woman who was “so hot, [that he would] eat the corn out of her shit.” Caras v. Isabella, Case No. 1:18-cv-00749 (D.D.C. Apr. 3, 2018). Given the publicity and controversy surrounding this case, a month later Isabella settled the matter with the plaintiff outside of court. See also Bellue v. E. Baton Rouge Sheriff, Case No. 3:17-cv-00576 (M.D. LA Sep. 13, 2018) (evidence of a lieutenant sending unsolicited text messages to plaintiff employee with “winking smiling emoji’s”).
The emoji is not just a weapon that plaintiffs can use in their cases against employers or accused harassers; it can also weigh against them. In Murdoch v. Medjet Assistance, 294 F. Supp. 3d 1242, 1253-54 (N.D. Ala. 2018), the court dismissed plaintiff employee’s sexual harassment suit against her former employer and accused harasser employer CEO, in part, because the plaintiff used the smiley face emoji in a number of text communications with the defendant CEO.
Similarly, in Stewart v. Durham, 2017 WL 603198 (N.D. Miss. Jun. 9, 2017), plaintiff claimed intentional infliction of emotional distress and negligent infliction of emotional distress due to defendant’s sexual advances. In particular, the court noted that defendant had texted the plaintiff a “picture of an engorged penis along with the message, ‘Your [job] interview will be next week . . . Can I get something for the interview?’” Plaintiff responded the next day, “you can get [a] hug and kiss after the interview!” And she also replied to his “I miss you text” with a “I miss you too” and included an emoji blowing him a kiss. She then subsequently texted him, “we can ‘celebrate’ once I get the job!” along with three winking emojis. The court found that plaintiff’s responses did not indicate distress to find defendant liable and granted summary judgment. See also Arnold v. Reliant Bank, 932 F. Supp. 2d 840 (M.D. Tenn. 2013) (as evidence concluding that plaintiff employee’s work environment was not hostile, court highlighted that, “the annual self-assessment also asked her whether there were any aspects of her job that prevented her from performing at her highest level and from feeling fulfilled. The plaintiff responded ‘[n]ope’ followed by a smiling emoticon.”)
Context Is Everything
Like all communications, emojis can help or hurt a case, depending on what has been communicated. And because emojis are often more ambiguous than a typical written communication, special consideration must be given to context. For example, emojis are often used to represent other objects—such as different fruits to represent different body parts. But some people may not be in the know. An uninformed supervisor sending what he thinks is an innocent invitation to grab Italian food for lunch with his employee (using the eggplant emoji) could be interpreted by the recipient as a graphic sexual proposition. Discovery in such a case may delve into the employer’s familiarity with emojis.
One Final Thought
While one may assume that companies need to go back and edit their employee handbooks or policies to include a section on emojis, this probably is not the case. Most likely, the use of emojis is already covered in sections involving employee expectations and their electronic communications. It is important to remind supervisors and employees, alike, that emojis are considered an electronic communication – just like words written in an email, though subject to wide interpretation given the limitations of a standalone graphic– that can be used as evidence in potential disputes.
©2019 Russell Law, PC
 “In total, there are 3,019 emjoi’s in the Unicode Standard as of March 2019.” https://emojipedia.org/stats/
 Megan Molteni, “New York’s MOMA Acquires the First Ever (Very Pixelated) Emoji.” Wired, dated Oct. 26, 2016 available at https://www.wired.com/2016/10/new-yorks-moma-acquires-first-ever-pixelated-emoji/ (last accessed Aug. 8, 2019).
 Id.; Arielle Pardes, “The Wired Guide to Emoji,” Wired, dated Feb. 1, 2018, available at https://www.wired.com/story/guide-emoji/ (last accessed Aug. 8, 2019).
 Samantha Murphy Kelly, “Emojis are increasingly coming up in court cases. Judges are struggling with how to interpret them.” CNN Business, available at https://www.cnn.com/2019/07/08/tech/emoji-law/ (last accessed on Aug. 8, 2019).
 Loryn Brantz, “69 Emoji Combinations That Symbolize Sexual Acts,” BuzzFeed, dated Jan. 9, 2017 available at https://www.buzzfeed.com/lorynbrantz/nice (last accessed on Aug. 8. 2019).
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