Not All Smiles: Emojis' Impact in Workplace Investigations and Employment Litigation

A growing area of complexity in employment law comes from the most unlikely and seemingly innocent of sources—the smiley face emoji. For investigators tasked with conducting a neutral, fact-finding inquiry, emojis¹ in documents pose a particular challenge because they have various meanings depending on the user's language, age, and location, among other factors. More and more, courts and litigators face similar issues, determining how to interpret and present emojis to fact-finders along with other new forms of communication such as gifs and memes.

At first blush, understanding emojis seems easy: they merely represent the object or idea they portray. However, this is often not the case. For example, the Wall Street Journal quoted an employment lawyer whose client received a series of emojis involving "horses and one that looked like a muffin" from a co-worker. While the lawyer was confused, her client explained the emojis meant "stud muffin" and were part of unwelcome advances in the workplace.

This article aims to help practitioners understand what emojis are, how various groups use them, and best practices for handling them.

Emoji Use and Meaning

Emojis are purposefully ambiguous, which makes them particularly challenging. The Unicode Consortium, the main developer and supporter of emojis, specifically noted in its Technical Standard that emojis "add useful ambiguity to messages, allowing the writer to convey many different possible concepts at the same time." Without an official definition, a single emoji can have many different meanings depending on the user and the audience. For example, while many interpret a skull emoji as referencing death or Halloween, Gen Z often uses the skull emoji to convey that something is funny, such that they "died laughing."

Emoji meanings can be even more localized amongst certain individuals. For example, in a 2018 lawsuit against a restauranteur, a plaintiff alleged that text messages she received depicting an emoji of corn on the cob constituted sexual harassment. While this may seem far-fetched without more context, at her workplace, her coworkers regularly used the corn on the cob emoji to denote an attractive woman.²

While rulings that hinge on emoji interpretation are rare, courts and counsel are increasingly looking at emojis as evidentiary support, not just an afterthought. In a 2015 trial about the online black-market website Silk Road, lawyers clashed over whether jurors should be able to read for themselves online messages that the defendant sent to others, or whether counsel should read the messages aloud to the jury. The judge ruled that the messages must be physically presented because the jurors "should note the punctuation and emoticons." Similarly, in a 2019 trial regarding alleged pimping, the prosecution asked an expert specializing in sex trafficking to testify regarding the way a string of emojis would be interpreted in that industry.

Further, different apps and operating systems apply their own artistic styles to emojis, so the same emoji may look slightly different from one system to another. This could affect a receiver's interpretation of what the sender meant by the emoji, or even the entire message. These nuances, together with emojis' various meanings, demonstrate why emojis have become "another type of content requiring judicial interpretation."

Strategies for Attorneys

Given the potential issues with emojis, investigators and litigators alike should understand some best practices when encountering emojis.

Do not disregard emojis or assume what they mean

Investigators and litigators should pay special attention to emojis when reviewing documents. This begins with recognizing that emojis are part of the record, not just aesthetics or minutiae. They convey meaning and can change the meaning of the text around it.

If possible, practitioners should attempt to look up the slang usage for unfamiliar or ambiguous emojis. Knowing the slang usage can help practitioners develop more targeted questions or make additional document requests before talking to witnesses. Research can also help litigators anticipate how fact-finders may construe emojis. While not official, various resources exist online to explain common meanings of emojis, such as Unicode and Emojipedia. However, practitioners should also be aware that some operating systems and websites allow users to create their own customized emojis, and these emojis would not have a common meaning.

Obtain as many copies of documents with emojis as possible, including natives and screenshots

Because emojis vary across apps and systems, the emoji an individual meant to send may not be the same exact one the receiver sees. Thus, knowing the operating systems used and obtaining copies of relevant emails, text messages, or social media posts from the sender and receiver(s) can help explain discrepancies. Practitioners may wish to obtain both screenshots and native files of such documents, as some vendors' software may not display emojis correctly. It may be helpful to discuss this issue with vendors before purchasing their software or reviewing documents.

Ask witnesses specific questions about emojis

Investigators and litigators should always ask both what the sender meant when sending the emojis, and what the receiver interpreted the emojis to mean. Even if the meanings seem obvious, because emoji usage can vary wildly and be subject to interpretation, one should neither assume what the sender intended to convey nor how the receiver interpreted it. This is particularly true if the sender created or customized the emoji. As legal scholar Eric Goldman pointed out in his article "Emojis and the Law":

"Any emoji interpretation should consider the context for the communications in question, including the entire exchange of messages. This context might indicate, for example, that the parties developed an idiosyncratic meaning for the emoji that should be used instead of any prevailing meanings for the emoji. Also, the emoji must be considered in conjunction with any associated text (and if it is in a string of emojis, in conjunction with those other emojis), not in isolation. Factfinders should be careful about presuming the meaning of any specific emoji; the parties should be allowed to present evidence of its meaning."

Further, asking individuals about the intentions behind their emojis helps to eliminate the practitioner's potential implicit biases. Avoiding applying one's own interpretations and biases to emojis will result in a more neutral and thorough investigation.

Conclusion

While emojis—and their "cousins," gifs and memes—may seem frivolous, all can add important context during investigations. Taking time to understand various emoji usages and asking witnesses specific questions about the emojis can not only uncover new information but also lead to a more accurate conclusion. Litigators must also be aware of the potential issues emojis can raise and how to handle those issues throughout litigation—lest they find themselves in a 🤯 situation.³