Emojis Deemed Harmless but Retaliation Claim Advances

 

By W. Kevin Smith and Jacob W. Crouse December 12, 2018
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​A plaintiff who was fired a week after reporting unwanted advances could proceed with her retaliation claim. However, a federal district court dismissed her harassment allegations, which described flirtatious statements and receiving winking smiley emojis in texts.

The plaintiff was employed by the East Baton Rouge Parish Sheriff's Department, in its communications division. The plaintiff alleged that her lieutenant/supervisor made unwanted, flirtatious statements to her, such as comments on how nice she looked and a text that read, "Oh, you could never be a bother," with a winking smiley emoji. He once texted her reminding her of "free dress day" and included a winking smiley emoji.

The plaintiff reported these incidents to her captain/supervisor. Shortly after, the plaintiff received a negative evaluation from that captain, but no further action was taken against her. The plaintiff alleged that the lieutenant continued to harass her in the form of "stalking" behavior, which she reported to the captain. The plaintiff then reported the harassment to the Office of Internal Affairs for the sheriff's department. Her employment was terminated within a week of making that report.

The plaintiff sued her employer, alleging sex discrimination and retaliation. The employer moved to dismiss those claims, asserting that the allegations made by the plaintiff could not support her claims.

[SHRM members-only toolkit: Managing Equal Employment Opportunity]

In addressing the sex-discrimination claim, the court found that the plaintiff had not shown that the alleged sexual harassment had altered a term, condition or privilege of her employment. The court further found that the alleged statements made by the lieutenant did not rise to the level of sexual harassment.

The court refused to dismiss the retaliation claim, however, finding that the close timing between the plaintiff's reporting to Internal Affairs and the termination of her employment created a reasonable inference that she was discharged for engaging in a protected activity, namely reporting the alleged harassment.

Bellue v. East Baton Rouge Sheriff, M.D. La., No. 17-00576 (Sept. 13, 2018).

Professional Pointer: An employer must be aware of the potential hazards when taking adverse employment action (e.g., termination) that is close in time to when an employee has engaged in protected activity (e.g., reporting a claim of sexual harassment). A meritless sexual-harassment claim may be converted into a meritorious retaliation claim if the employer lacks a legitimate basis for taking the adverse employment action.

[Visit SHRM's resource page on workplace harassment.]

W. Kevin Smith and Jacob W. Crouse are attorneys with Smith and Smith Attorneys the Worklaw® Network member firm in Louisville, Ky.

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