The ACLU said a worker used racist tropes and fired her. But did she do it?

No one thought Kate Oh would be a full-fledged employee.

During her five years as a lawyer for the American Civil Liberties Union, she was a relentless critic of her superiors, known for sending long, scathing emails to human resources complaining about what she described as a hostile workplace.

She saw herself as a whistleblower and advocate for other women in the office, drawing unflattering attention to an environment that she said was rife with sexism, weighed down by unmanageable workloads, and hampered by a fear-based culture .

Then the situation reversed and it was Ms. Oh who was accused of serious misconduct. The ACLU said its complaints against several supervisors — all black — used “racist stereotypes.” She was fired in May 2022.

The ACLU acknowledges that Ms. Oh, who is Korean-American, never used racial slurs. But the group claims its use of certain phrases and words demonstrated a pattern of deliberate animosity toward black people.

In one case, according to court documents, she told a black supervisor that she was “afraid” to talk to him. In another, she told a manager their conversation was “reprimanding.” And during a meeting, she repeated a satirical phrase comparing her bosses' behavior to “beatings.”

Does his language add to racism? Or was she just speaking harshly about bosses who happened to be black? That issue is the subject of an unusual unfair labor practice case brought against the ACLU by the National Labor Relations Board, which accused the organization of retaliation against Ms. Oh.

The trial in the case ended this week in Washington, and a judge is expected to decide in the coming months whether the ACLU was justified in firing the woman.

If the ACLU loses, it could be ordered to reinstate her or pay her compensation.

The core of the ACLU's defense — arguing for a broad definition of what constitutes racist or racially coded speech — struck some labor and free speech lawyers as odd, since the organization has traditionally protected the right to free speech, operating on the principle that he may not like what someone says, but he will fight for the right to say it.

The case raises intriguing questions about the wide range of employee behavior and speech protected by labor law — and how the nation's leading civil rights organization finds itself on the opposing side of that law, arguing that these protections should not apply to its former employees. employee.

A lawyer representing the ACLU, Ken Margolis, said in court proceedings last year that it was immaterial that Ms. Oh had no racist ill will. All that mattered, he said, was that his black colleagues were offended and hurt.

“We are not here to prove anything other than the impact of her actions was very real — that she caused harm,” Mr. Margolis said, according to a transcript of his remarks. “She has caused serious harm to Black members of the ACLU community.”

Rick Bialczak, the lawyer who represents Ms. Oh through his union, responded sarcastically, saying he wanted to commend Mr. Margolis for giving a thorough presentation of the ACLU's evidence: three interactions Ms. Oh had had with colleagues that were reported to human resources.

“I want to recognize and commend Ken for spending 40 minutes explaining why three quiet comments over a period of months constitute serious harm to ACLU members, black employees,” he said .

Yes, she had complained about black supervisors, Mr. Bialczak acknowledged. But his direct boss and that boss's boss were black.

“They were his supervisors,” he said. “If she has complaints about her supervision, who is she supposed to complain to? »

Ms Oh declined to comment for this article, citing the ongoing case.

The ACLU has a history of representing groups that liberals revile. This week is argued before the Supreme Court on behalf of the National Rifle Association in a First Amendment case.

But for the ACLU's critics, Ms. Oh's case shows how far the group has strayed from its core mission — defending free speech — and instead lined up with intensely identity-centered progressive politics.

“Much of our work today,” as the website explains, “focuses on equality for people of color, women, gay and transgender people, prisoners, immigrants and people disabled. »

And since the start of the Trump administration, the organization has engaged in partisan causes that it might have avoided in the past, such as leading a advertisement to support Stacey Abrams' 2018 campaign for governor of Georgia.

“They grew radically and collected so much more money — hundreds of millions of dollars — from left-wing donors who were desperate to push back against the frightening excesses of the Trump administration,” said Lara Bazelon, a law professor at the University of San Francisco who has been critical from the ACLU “And they hired people with many extremely strong opinions on race and workplace rules. And in doing so, they themselves fell into excess.”

“I'm going through the archives looking for evidence that this Asian woman is racist,” Ms. Bazelon added, “and I can't find any.”

The beginning of the end for Ms. Oh, who worked in the ACLU's political advocacy department, began in late February 2022, according to court documents and interviews with lawyers and others familiar with the matter.

The ACLU was holding a virtual organization-wide meeting under difficult circumstances. The national political director, who was black, had suddenly left the post following multiple complaints about his abrasive treatment of subordinates. Ms Oh, who was among the employees who complained, spoke at the meeting to say she was skeptical that conditions had really improved.

“Why shouldn't we just expect 'the beatings to continue until morale improves,'” she said in a Zoom group chat, invoking a phrase well-known that is printed and sold on T-shirts, usually accompanied by the skull and skull. crossbones of a pirate flag. She explained that it was “definitely metaphorical.”

Soon after, Ms. Oh heard from the ACLU official overseeing its equity and inclusion efforts, Amber Hikes, who warned Ms. Oh about her language. Ms Oh's comment was “dangerous and damaging”, Ms Hikes warned, as it appeared to suggest the former supervisor had physically assaulted her.

“Please consider the very real impact of this type of violent language in the workplace,” Ms. Hikes wrote in an email.

Ms Oh admitted she was wrong and apologized.

In the following weeks, senior managers documented other instances in which they said Ms. Oh had mistreated black employees.

In early March, Ben Needham, who had succeeded the recently departed national political director, reported that Ms Oh had called her direct superior, a black woman, a liar. According to his account, he asked Ms. Oh why she had not complained earlier.

She responded that she was “scared” to talk to him.

“As a black man, language like ‘fear’ is generally a code word for me,” Mr. Needham wrote in an email to other ACLU officials. “It’s triggering for me.”

Mr. Needham, who is gay and grew up in the Deep South, said in an interview that when he was a child, “I was taught that I was a danger.”

Hearing someone say they're afraid of him, he added, is like saying, “These are the people we should be afraid of.” »

Ms. Oh and her lawyers cited her own past: As a survivor of domestic violence, she was particularly sensitive to tense interactions with male colleagues. She said she was troubled that Mr. Needham once called his predecessor a “friend,” since she was among the employees who had criticized him.

Mr Needham said he spoke about their relationship only in a professional context.

According to court records, the ACLU conducted an internal investigation to determine whether Ms. Oh had reason to fear speaking to Mr. Needham, and concluded that there were “no compelling grounds” for her concerns.

The following month, Ms Hikes, head of equity and inclusion, wrote to Ms Oh, documenting a third incident – ​​her own.

“Calling my recording a ‘chastisement’ or ‘reprimand’ feels like a deliberate misinterpretation in order to continue the flow of anti-Black rhetoric you are using throughout the organization,” Ms. Hikes wrote in an email.

“I hope you consider the lived experiences and feelings of those you work with,” she added. (Citing the ongoing case, the ACLU said Ms. Hikes was unable to comment for this article.)

The final straw that led to Ms. Oh's dismissal, according to the organization, came in late April, when she wrote on Twitter that she was “physically repulsed” by having to work for “incompetent bosses /abusive”.

As caustic as his message was – likely grounds for dismissal in most circumstances – his speech may have been protected. The NLRB's complaint rests on the argument that Ms. Oh, as an employee who had previously complained about working conditions with other co-workers, was engaging in what is legally known as “protected concerted activity.” .

“The public nature of his speech does not deprive him of the protection of the NLRA,” said Charlotte Garden, a law professor at the University of Minnesota, referring to the National Labor Relations Act, which covers rights workers.

She said the burden of proof is on the NLRB, which must convince the judge that Ms. Oh's social media post and her other comments were part of a pattern of speaking out at work.

“You could say it’s a consequence of that and therefore it’s protected,” she said.

The ACLU argued that it has the right to maintain a civil workplace, just as Ms. Oh has the right to express herself. And he didn't back down from his assertion that his language was harmful to his black colleagues, even though his remarks weren't explicitly racist.

Terence Dougherty, the attorney general, said in an interview that standards of workplace conduct changed in 2024, likening the case to someone using the wrong pronouns when addressing a transgender colleague.

“There are nuances in language,” Mr. Dougherty said, “that really impact the sense of belonging in the workplace.”

Related Articles

Back to top button