A winking emoji was part of a recent sexual harassment/retaliation suit. That’s right, a winking emoji. Here’s how it went down: A sheriff’s department employee alleged that her supervisor made unwanted and flirtatious statements to her including comments on how nice she looked and texts like “Oh, you can never be a bother” and a reminder that there was an upcoming “free dress day,” both including winking smiley emojis in the texts. The plaintiff reported the incidents, received a negative job evaluation, reported continued “harassment” to internal affairs and, within one week, her employment was terminated.
The plaintiff then sued, alleging her employer of sex discrimination and retaliation. The court found that the comments and emojis did not rise to the level of sexual harassment necessary to prove discrimination, but it did accept the retaliation claim. (Read more about the case at SHRM.)
Ambiguous tone and intention in digital communications like texts, direct messages, and emails have certainly complicated the HR landscape when it comes to employee harassment. According to the Equal Employment Opportunity Commission (EEOC), an employer can generally avoid liability in alleged harassment if it reasonably tried to prevent and promptly correct the harassing behavior, and the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer.
Retaliation is another story.
An employer is automatically liable when alleged harassment by a supervisor results in a negative employment action such as termination, failure to promote or hire, and loss of wages. And it’s common: The EEOC asserts that retaliation is the most common discrimination finding in federal sector cases.
That’s the lesson for employers this emoji-laden case teaches. Proving harassment when a supervisor digitally “winks” at an employee is hard to do. But proving retaliation when the employee who claims the harassment is suddenly reprimanded, demoted, or fired is much easier. No matter how frivolous the claim may be, suspiciously swift adverse employment action against the claimant can be a dangerous move.
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