Workplace Harassment using ‘emoji’ communication

Workplace Harassment – Navigating the fine line between ‘emoji’ communication

While we meticulously choose a single or a combination of colourful pixilated characters to represent our emotions without using words, also known as emojis, we often forget the possible legal implication of using such characters. 

If we were to tell you that a thumbs-up emoji you sent to one of your contacts could bind you into a contract and can be treated as a valid signature, would you believe it? Chris Achter, a Canadian farmer, certainly didn’t believe it when he was ordered by the Kin’s Bench to pay $61,442 for an unfulfilled contract. In this recent case, the buyer SWT Kent Mikleborough spoke with the farmer on the phone and texted a picture of the contract to deliver the flax seeds letter asking the farmer to “please confirm the flax contract”. The farmer replied with a thumbs-up, but the buyer never received the delivery of the goods as per the contract. While the lawyers from both sides argued on the best use case knowledge of emojis’, the court eventually ruled in favour of SWT with the farmer demanding the need for courts to adapt to the new reality of communication.  

The use of emojis has become a habit and to be penalised for it might seem trivial, but is it trivial? Sending a heart emoji with a pretext of a good-morning message to a junior employee or sending a winking emoji after commenting on your colleague’s looks can potentially lead to a case of sexual harassment, as in the case Bellue v. East Baton Rouge Sheriff1, in New York. The court upheld the complaint when an employee sued her employer for sexual harassment after a colleague messaged her commenting on her looks followed by a winking emoji.  

The law is clear. Work transcends the four walls of the office, with the internet merging the workplace and the digital world. Thus, emojis, if sent with an intention that is insensitive and out of the expected conduct of a workplace, can be held as sexual harassment at the workplace on a case-to-case basis.  

In 2018, the Madras High Court deep-dived into the interpretation of the emoji when a criminal complaint was filed against BSNL employees for posting the emoji ‘smiling face with tears in response to video footage posted by Respondent no. 2 on a WhatsApp group.  The criminal complaint was filed under the Tamil Nadu Prohibition of Harassment of Women Act 1998. The Court while quashing the FIR noted that even though the emojis used in the present case did not attract any provisions of the Act, however, it did offend the Respondent.  

While emojis depending on the context can convey the feeling of happiness, sadness or anger, it is crucial to recognize that an unsolicited heart emoji or a kiss face emoji is not a behaviour that any organisation would allow. Although there is a lack of precedent in the Indian context, instances of interns sharing screenshots of employers sending please reply or similar messages on the pretext of securing an internship, emoticons with sexual innuendos between stakeholders at the workplace, etc. should not and may not go unnoticed by organizations.  



Written by – Isha Khorana

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