The ACLU said an employee used racial slurs and fired her. But did she?
Kate Oh was no one’s idea of an employee.
During her five years as an attorney for the American Civil Liberties Union, she was a ruthless critic of her superiors, known for sending long, blistering emails to human resources complaining about what she described as a hostile workplace.
She considered herself a whistleblower and advocate for other women in the office, drawing unflattering attention to an environment she saw as rife with sexism, burdened with unmanageable workloads and hampered by a fear-based culture.
Then the tables turned, and Ms. Oh was the one hit with a charge of serious misconduct. The ACLU said its complaints about several superiors — all of whom were black — used “racist stereotypes.” She was fired in May 2022.
The ACLU acknowledges that Ms. Oh, a Korean-American, has never made racist comments. But the group says her use of certain phrases and words demonstrated a pattern of deliberate anti-black animus.
In one instance, according to court documents, she told a black superior she was “scared” to talk to him. In another, she told a manager their conversation was “chastising.” And during a meeting, she repeated a satirical line comparing her bosses’ behavior to “beatings.”
Has her language led to racism? Or was she just talking rudely about bosses who happened to be black? That question is the subject of an unusual unfair labor practice case brought against the ACLU by the National Labor Relations Board, which has accused the organization of retaliating against Ms. Oh.
A trial in the case concluded this week in Washington and a judge is expected to decide in the coming months whether the ACLU was justified in firing her.
If the ACLU loses, it could be ordered to reinstate her or pay restitution.
The core of the ACLU’s defense — advocating an expansive definition of what constitutes racist or racially coded speech — has struck some labor and free speech lawyers as odd, since the organization has historically protected the right to free speech and operates on the principle that it may not like what someone says, but it will fight for the right to say it.
The case raises some 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 other side of that law, arguing that those protections are not should apply to her former employee.
A lawyer representing the ACLU, Ken Margolis, said during a legal proceeding last year that it was irrelevant whether Ms. Oh harbored racist ill will. All that mattered, he said, was that her black colleagues were offended and hurt.
“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 attorney representing Ms. Oh through her union, responded sarcastically, saying he wanted to congratulate Mr. Margolis on giving an exhaustive presentation of the ACLU’s evidence: three interactions Ms. the personnel department.
“I want to note and commend Ken for spending 40 minutes explaining why three discreet comments over a period of several months caused serious harm to ACLU members, Black workers,” he said.
Yes, she had complained about black supervisors, Mr. Bialczak acknowledged. But her immediate boss and that boss’s boss were black.
“Those were her supervisors,” he said. “If she has complaints about her supervision, who should she complain about?”
Ms Oh declined to comment for this article, citing the ongoing case.
The ACLU has a history of representing groups reviled by liberals. This week, it argued before the Supreme Court on behalf of the National Rifle Association in a First Amendment case.
But for critics of the ACLU, Ms. Oh’s case is a sign of how far the group has strayed from its core mission — defending free speech — and instead joined a progressive politics intensely focused on identity .
“Much of our work today,” the website explains, “is focused 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 on partisan issues that it might have avoided in the past, such as running a advertisement in support of Stacey Abrams’ 2018 campaign for governor of Georgia.
“They expanded radically and raised so much more money — hundreds of millions of dollars — from left-wing donors desperate to roll back the Trump administration’s terrifying excesses,” said Lara Bazelon, a law professor at the University of San Francisco. critical from the ACLU “And they hired people with a lot of extremely strong views on race and workplace rules. And along the way they themselves ended up in a situation of excesses.”
“I’m going through the entire file looking for any evidence that this Asian woman is a racist,” Ms. Bazelon added, “and I’m finding none.”
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 case.
The ACLU organized a virtual organization-wide meeting under difficult circumstances. The national political director, who was black, had left suddenly after multiple complaints about his abrasive treatment of subordinates. Ms. Oh, one of the employees who had complained, spoke at the meeting and stated that she was skeptical that conditions would actually improve.
“Why not simply expect that ‘the abuse will continue until morale improves,’” she said in a Zoom group chat, invoking a well-known phrase printed and sold on T-shirts, usually accompanied by the skull and crossbones of a pirate flag. She explained that she was “absolutely metaphorical.”
Shortly thereafter, Ms. Oh heard from the ACLU manager overseeing 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 imply the former supervisor had physically assaulted her.
“Please consider the very real impact of that kind of violent language in the workplace,” Ms. Hikes wrote in an email.
Ms. Oh acknowledged that she had been wrong and apologized.
In subsequent weeks, senior managers documented other instances in which they said Ms. Oh mistreated black employees.
In early March, Ben Needham, who had succeeded the recently departed national political director, reported that Ms. Oh called her immediate supervisor, a black woman, a liar. According to his story, he asked Ms. Oh why she had not complained before.
She replied that she was “scared” to talk to him.
“As a black man, language like ‘scared’ is generally a code word for me,” Mr. Needham wrote in an email to other ACLU executives. “It’s triggering for me.”
Mr. Needham, who is gay and grew up in the Deep South, said in an interview: “I learned as a child that I was a danger.”
Hearing someone say he or she is afraid of them, 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 took issue with Mr Needham ever calling his predecessor a “friend” as she was among the employees who criticized him.
Mr Needham said he had only discussed their relationship in a professional context.
According to court documents, the ACLU conducted an internal investigation into whether Ms. Oh had any reason to be afraid of talking to Mr. Needham, concluding that there were “no compelling grounds” for her concerns.
The following month, Ms. Hikes, head of the equality and inclusion department, wrote a letter to Ms. Oh, documenting a third incident: her own.
“Calling my check-in ‘chastise’ or ‘reprimand’ feels like an intentional mischaracterization to continue the stream of anti-Black rhetoric you have used throughout the organization,” Ms. Hikes wrote in an email.
“I am hopeful that you will take into account the lived experiences and feelings of those you work with,” she added. (Citing the ongoing case, the ACLU said Ms. Hikes could not comment for this article.)
The final straw that led to Ms. Oh’s dismissal 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 caustic as her position was – likely grounds for dismissal in most circumstances – her speech may have been protected. The NLRB’s complaint rests on an argument that Ms. Oh, as an employee who had previously complained with other coworkers about workplace conditions, engaged in what is legally known as “protected concerted activity.”
“The public nature of her speech does not deprive her of the protections 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 workplace speaking out.
“You could say this is a corollary of that and therefore protected,” she said.
The ACLU has argued that she has the right to maintain a civil workplace, just as Ms. Oh has the right to speak out. And she has not backed away from claiming that her language was harmful to black colleagues, even though her words were not explicitly racist.
Terence Dougherty, the general counsel, said in an interview that standards for workplace behavior have shifted in 2024, likening the case to someone who used the wrong pronouns when addressing a transgender colleague.
“There is nuance in the language,” Mr. Dougherty said, “that really impacts the sense of belonging in the workplace.”