Kate Oh was no one’s gregarious co-worker imaginable.
During her five years as an attorney for the American Civil Liberties Union, she was a relentless critic of her bosses and was known for sending long, pointed emails to human resources complaining about what she saw as a hostile workplace.
She considered herself a whistleblower and advocate for other women in the office, drawing unflattering attention to an environment she said was rife with sexism, burdened by unmanageable workloads and hampered by a fear-based culture.
Then the tables turned and Ms. Oh was slapped with allegations of serious misconduct. The ACLU said its complaints about several supervisors — all Black — used “racist stereotypes.” She was released in May 2022.
The ACLU acknowledges that Ms. Oh, a Korean American, has never used any type of racial slur. But the group says its use of certain phrases and words shows a pattern of deliberate anti-black hostility.
In one case, according to court documents, she told a black supervisor that she was “afraid” to talk to him. In another instance, she told a manager that her conversation was “punitive.” And in a meeting she repeated a satirical sentence in which she compared her superiors’ behavior to “beatings”.
Has their language led to racism? Or was she just talking harshly about bosses who happened to be black? This issue is the subject of an unusual unfair labor practices case brought by the National Labor Relations Board against the ACLU, accusing the organization of retaliation against Ms. Oh.
The trial in that case ended this week in Washington, and a judge is expected to decide in the next few months whether the ACLU had standing to fire her.
If the ACLU loses, it could be ordered reinstated or ordered to pay restitution.
The core of the ACLU’s defense – the plea for a detailed definition of what constitutes racist or racially coded speech – has struck some labor and free speech lawyers as odd, since the organization has traditionally protected the right to free speech on the basis of principle is based on the fact that… It may not like what someone says, but it will fight for the right to say it.
The case raises some interesting questions about the broad scope of employee behavior and expression that labor law protects — and how the country’s preeminent civil rights organization finds itself on the other side of that law, arguing that those protections should not apply to the former Employees.
An ACLU attorney, Ken Margolis, said during a court hearing last year that it was irrelevant whether Ms. Oh did not harbor racial antipathy. All that matters is that their black colleagues are offended and hurt, he said.
“We are not here to prove anything other than that 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 representing Ms. Oh through her union, responded sarcastically and said he wanted to congratulate Mr. Margolis on his detailed presentation of the ACLU’s evidence: three interactions Ms. Oh had with co-workers that were reported to human resources.
“I want to acknowledge and commend Ken for spending 40 minutes explaining why three discrete comments over a period of several months represent serious harm to ACLU members and Black staff,” he said.
Yes, she complained about black superiors, Mr. Bialczak admitted. But her direct boss and that boss’s boss were black.
“Those were their superiors,” he said. “If she has complaints about her supervision, who should she complain to?”
Ms. Oh declined to comment for this article, citing the ongoing case.
The ACLU has a history of representing groups despised by liberals. This week it argued a First Amendment case before the Supreme Court on behalf of the National Rifle Association.
But for critics of the ACLU, Ms. Oh’s case is a sign of how far the group has strayed from its core mission of defending free speech, instead embracing progressive politics that focus heavily on identity.
“Much of our work today,” as the website states, “focuses on equality for people of color, women, gay and transgender people, prisoners, immigrants, and people with disabilities.”
And since the start of the Trump administration, the organization has taken up partisan causes it might have avoided in the past, such as running an ad supporting Stacey Abrams’ campaign for governor of Georgia in 2018.
“They radically expanded and raised 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 was critical of the ACLU. And they hired people who had a lot of extremely strong views on race and workplace rules. And in doing so, they themselves fell into a state of affluence.”
“I’m searching the file for evidence that this Asian woman is a 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 division, began in late February 2022, according to court filings and interviews with lawyers and others familiar with the case.
The ACLU held a virtual organization-wide meeting under difficult circumstances. The national political director, a black man, had left suddenly after repeatedly complaining about his aggressive treatment of subordinates. Ms. Oh, one of the employees who complained, expressed skepticism during the meeting that conditions would actually improve.
“Why shouldn’t we just expect the beatings to continue until morale improves?” she said in a Zoom group chat, citing a well-known phrase that is printed on T-shirts and sold. usually accompanied by the skull and crossbones of a pirate flag. She explained that it was “definitely metaphorical.”
Shortly thereafter, Ms. Oh heard from ACLU executive director Amber Hikes, who oversees equity and inclusion efforts, and warned Ms. Oh about her language. Ms. Oh’s comment was “dangerous and damaging,” Ms. Hikes warned, because it appeared to suggest that the former supervisor had physically attacked 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.
Over the next few weeks, senior managers documented additional instances in which they believed Ms. Oh mistreated black employees.
In early March, Ben Needham, who succeeded the recently departed national political director, reported that Ms. Oh had called her direct boss, a black woman, a liar. According to his report, he asked Ms. Oh why she had not complained earlier.
She replied 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 managers. “It’s triggering for me.”
Mr. Needham, who is gay and grew up in the Deep South, said in an interview: “I was taught as a child 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 have cited her own past: As a survivor of domestic violence, she was particularly sensitive to tense interactions with male colleagues. She said she was disturbed that Mr. Needham once referred to his predecessor as a “friend” because she was among the employees who had criticized him.
Mr Needham said he only spoke about their relationship in a professional context.
According to court documents, the ACLU conducted an internal investigation to determine whether Ms. Oh had any reason to be afraid of speaking to Mr. Needham and concluded that there were “no compelling reasons” for her concerns.
The following month, Ms. Hikes, director of equity and inclusion, wrote to Ms. Oh documenting a third incident — her own.
“Calling my check-in a ‘castigation’ or ‘measure’ feels like a deliberate mischaracterization to continue the stream of anti-Black rhetoric you have used throughout the organization,” Ms. Hikes wrote in an email.
“I hope that you will 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 firing came in late April, according to the organization, when she wrote on Twitter that she was “physically disgusted” by having to work for “incompetent/abusive bosses.”
As vitriolic as her post was – likely grounds for firing in most cases – her speech may have been protected. The NLRB’s complaint is based on the argument that Ms. Oh, as an employee who had previously complained about working conditions along with other colleagues, engaged in what is legally called a “protected concerted activity.”
“The public nature of her speech does not deprive her 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 governs workers’ rights.
She added that 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 in the workplace.
“You could say this is a result of that and is therefore protected,” she said.
The ACLU has argued that she has the right to maintain a civilian workplace, just as Ms. Oh has the right to speak out. And she hasn’t backed down from her claim that her language harmed black colleagues, even if her words weren’t explicitly racist.
Terence Dougherty, the general counsel, said in an interview that standards of workplace conduct have changed in 2024, comparing the case to someone who used the wrong pronouns when addressing a transgender colleague.
“There are nuances in language,” Mr. Dougherty said, “that actually have an impact on a sense of belonging in the workplace.”
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2024-03-22 09:05:24
www.nytimes.com