Can Sending an Emoji to a Colleague Expose Me or My Employer to a Claim for Harassment? Tips for Preventing Harassment Claims In the Age of Social Media

Category: Blog Posts
Date: Nov 5, 2019 12:27 PM

If you are a supervisory employee for a public agency or private school in California, or a member of your employer’s human resources department, you have most likely sat through a 2-hour supervisory training regarding preventing harassment in the workplace.  You may know this training as “AB 1825  Training.”  If you are a non-supervisory employee, don’t feel left out!  Due to recent changes in California law, if you have not already done so, your employer will be requiring you to sit through a 1-hour harassment prevention training by January 1, 2020 (*friendly reminder to all agencies and schools who have not scheduled this training yet*).

Harassment prevention trainings cover a lot of information, including legal standards for harassment under the California Fair Employment and Housing Act (“FEHA”) and its implementing regulations and what types of conduct may constitute harassment.  Additionally, the FEHA now requires that harassment trainings also include instruction on the prevention of “abusive conduct,” what may colloquially be called bullying.  While “abusive conduct” is not illegal, engaging in such conduct will likely violate employer codes of conduct and subject a perpetrator to discipline, up to and including termination.  Harassment, and abusive conduct, include visual conduct, such as the use or display of derogatory or lewd posters, pictures, drawings, and cartoons, and making lewd gestures, as well as verbal conduct, such as epithets, derogatory comments, slurs, jokes, or lewd propositions.  Whether such visual or verbal conduct constitutes unlawful harassment depends on if the conduct was perpetrated because of someone’s membership in a protected classification, including race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or association with someone who is a member of one of these protected classes; if the conduct is unrelated to a person’s protected status, it will not satisfy the legal definition of harassment, but may constitute abusive conduct.

This may all sound familiar to you.  Employers have been investigating and litigating claims of harassment for decades.  Most supervisors have been sitting through harassment prevention trainings for the last 15 years.  But while the overarching legal definition of harassment may not have substantially changed, the types of behavior that may constitute harassment has greatly expanded.  In the age of social media – where people (and not just Millennials and Gen-Z’ers) are choosing to more regularly communicate through emoticons (e.g., :) or ;) ), emojis (e.g., smiling_face_emoji_large ), memes, and Instagram and Facebook postings and messages – the types of behavior that may expose an employee and employer to allegations of harassment and bullying are expansive.  Images or videos that may constitute evidence of visual harassment may now include emoticons, memes, “snaps” and other images or videos created or posted through social media applications.  Verbal harassment may no longer be as simple making inappropriate jokes or lewd comments in front of or directed to colleagues.  What about “tagging” someone in an inappropriate Instagram or Twitter post?

As social media and image-based communication becomes a regular part of our lexicon and daily interactions, it is important to understand how these types of visual and verbal communications have the potential to implicate claims of harassment and abusive conduct.  Here are some tips for employers, as well as individual employees, for preventing certain types of conduct from being used to establish claims of visual or verbal harassment or abusive conduct:

  • Avoid using emoticons, such as “winky” faces ;), or emojis in communications with colleagues. Given different contexts in which a fellow employee can receive these images, sending a ;) to a colleague may be misconstrued as having a sexual undertone, even though this is not the message the sender intended to convey.  If you are attempting to convey appreciation or another emotion through these means of communication, use your words instead.
  • Consider not “friending” colleagues, and in particular subordinates, on social media, including Instagram, Facebook, Twitter and Snapchat. While the use of a personal social media account off-duty will generally not give rise to actionable claims for workplace harassment, standing alone, the types of statements you make in private could lead to uncomfortable situations with colleagues in the workplace, and may also be used as evidence in support of other allegedly harassing conduct in the workplace.  If you chose not to heed this advice, think twice about who your social media audience includes before posting or sharing personal or private information on social media.  (As a caveat, at the same time, labor relations laws can protect employees’ communications with others on social media concerning their wages, hours, and conditions of employment.)
  • If you are a supervisor, consider making it a personal policy not to accept “friend requests” from subordinates.
  • If you are friends with colleagues on social media, be careful about what posts you “tag” your colleagues. For example, a meme that you consider funny may be considered offensive to others.  Just because you consider a colleague to be your friend does not mean they have the same sense of humor as you.
  • If you work for an educational institution, considering making it your personal policy not to accept “friend requests” from students or otherwise engage with current students via social media.
  • Do not use social media accounts to communicate about work-related matters. For example, many agencies do not provide certain classes of employees with agency email accounts.  This may include front-line utility and recreation & parks employees, as well as volunteers.  Just because your agency does not provide these individuals with email accounts does not mean that those individuals’ supervisors should communicate about work related matters using non-employer approved methods of communication.  Employers should ensure that there are established lines of communications between supervisors and those employees or volunteers without email accounts.  For public sector employees, it is also important to remember that written communications about agency-related matters made through personal email accounts, social media accounts, or phones can be subject to California Public Records Act requests.

As an LCW attorney who conducts harassment prevention trainings for public agency and private school clients, I regularly get looks of concern when I tell training participants that what they perceive as their innocent use of winky faces in an email communication, or a gesture of friendship by “friending” a colleague on social media, comes with the risk exposing them to claims of harassment.  While such behavior may end up being innocuous, those trainings, and this post, should serve as important reminders that the use of social media or other modern means of communication is a new legal frontier with which we are all learning to deal.  The growing use of technology both in and tangential to the workplace comes with the additional responsibility to check your behavior and that of your colleagues to ensure that the means by which they choose to communicate is objectively and subjectively respectful, unbiased, and inclusive.

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