Re: ACLU Accuses Asian Attorney of Using 'Coded' Racism; Fires Her; ACLU Sued by Government

On Mon, 25 Mar 2024 19:32:50 +0000, BTR1701 <atropos@mac.com> wrote:

So now expressing fear of one's boss or describing his behavior as
"chastising" is racist if the boss is black.
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And this is the ACLU we're talking about. Anyone who still thinks the ACLU is
the constitutional rights advocate that it used to be needs their head
examined. It's nothing but a shill for the most extreme and radical woke
policies.
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https://www.nytimes.com/2024/03/22/us/politics/aclu-employee-fired-race-bias.html
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The civil liberties group is defending itself in an unusual case that weighs
what kind of language may be evidence of bias against black people.
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Kate Oh was no one's idea of a get-along-to-go-along employee. During her five
years as a lawyer for the American Civil Liberties Union, she was an unsparing
critic of her superiors, known for sending long, blistering emails to human
resources complaining about what she described as a hostile workplace.
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She considered herself a whistle blower 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 stymied by a fear-based
culture.
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Then the tables turned and Ms. Oh was the one slapped with an accusation of
serious misconduct. The ACLU said her complaints about several superiors-- all
of whom were black-- used "racist stereotypes". She was fired in May 2022.
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The ACLU acknowledges that Ms. Oh, who is Korean-American, never used any kind
of racial slur, but the group says that her use of certain phrases and words
demonstrated a pattern of willful anti-black animus.
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In one instance, according to court documents, she told a black superior that
she was "afraid" to talk with him. In another, she told a manager that their
conversation was "chastising". And in a meeting, she repeated a satirical
phrase likening her bosses' behavior to suffering beatings.
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Did her language add up to racism? Or was she just speaking harshly 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 wrapped up this week in Washington, and a judge is
expected to decide in the next few months whether the ACLU was justified in
terminating her. If the ACLU loses, it could be ordered to reinstate her or
pay restitution.
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The heart of the ACLU's defense-- arguing for an expansive definition of what
constitutes racist or racially coded speech-- has struck some labor and
free-speech lawyers as peculiar, since the organization has traditionally
protected the right to free expression, operating on the principle that it may
not like what someone says, but will fight for the right to say it.
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The case raises some intriguing questions about the wide swath of employee
behavior and speech that labor law protects-- and how the nation's pre-eminent
civil rights organization finds itself on the opposite side of that law,
arguing that those protections should not apply to its former employee.
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A lawyer representing the ACLU, Ken Margolis, said during a legal proceeding
last year that it was irrelevant whether Ms. Oh bore no racist ill will. All
that mattered, he said, was that her black colleagues were offended and
injured.

And there is the major issue. It does not matter what she thought but
only what others thought or at least said they thought. Been there
done that where I was accused of something similar by someone who
remained nameless but who I'm sure I know because she was known to be
a troublemaker. Luckily in my case it wasn't taken as seriously given
that there was no evidence I did anything, but in Ms Oh's case it
doesn't matter that she did nothing wrong, but that her complaints
ended up bothering her colleagues enough that they finally complained.

So her complaints did not matter but their complaints did. How does
that happen?

"We're 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 caused serious harm to black members of the
ACLU community."

He doesn't address if her complaints had any basis in reality. If her
complaints did have a basis does it still matter if the others felt
she caused them harm?

Rick Bialczak, the lawyer who represents Ms. Oh through her union, responded
sarcastically, saying he wanted to congratulate Mr. Margolis for making an
exhaustive presentation of the ACLU's evidence: three interactions Ms. Oh had
with colleagues that were reported to human resources.
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"I would note, and commend Ken, for spending 40 minutes explaining why three
discreet comments over a multi-month period of time constitutes serious harm
to the ACLU members, black employees,” he said. "Yes, she had complained about
black supervisors, Mr. Bialczak acknowledged, but her direct boss and that
boss's boss were black. "Those were her supervisors," he said. "If she has
complaints about her supervision, who is she supposed to complain about?"

Wait, so the complaint is that she complained to HR about her
supervisors over months, but not to others? How is that even an issue
that should lead to her firing? Isn't HR's role to help mitigate those
sorts of interpersonal issues.

Ms. Oh declined to comment for this article, citing the ongoing case.
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The ACLU has a history of representing groups that liberals revile. This week,
it argued in the Supreme Court on behalf of the National Rifle Association in
a 1st Amendment case, but to 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 has instead aligned itself with a progressive politics that is intensely
focused on identity.
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"Much of our work today," as it explains on its website, "is focused on
equality for people of color, women, gay and transgender people, prisoners,
immigrants, and people with disabilities."
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And since the beginning of the Trump administration, the organization has
taken up partisan causes it might have avoided in the past, like running an
advertisement to support Stacey Abrams' 2018 campaign for governor of
Georgia.
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"They radically expanded and raised so much more money-- hundreds of millions
of dollars-- from leftist donors who were desperate to push back on the scary
excesses of the Trump administration," said Lara Bazelon, a law professor at
the University of San Francisco who has been critical of the ACLU. "And they
hired people with a lot of extremely strong views about race and workplace
rules and in the process, they themselves veered into a place of excess. I
scour the record for any evidence that this Asian woman is a racist and I
don't find any."
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The beginning of the end for Ms. Oh, who worked in the ACLU's political
advocacy department, started in late February 2022, according to court papers
and interviews with lawyers and others familiar with the case.
The ACLU was hosting a virtual organization-wide meeting under heavy
circumstances. The national political director, who was black, had suddenly
departed following multiple complaints about his abrasive treatment of
subordinates. Ms. Oh, who was one of the employees who had complained, spoke
up during the meeting to declare herself skeptical that conditions would
actually improve.
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"Why shouldn't we simply expect that 'the beatings will continue until morale
improves'," she said in a Zoom group chat, invoking a well-known phrase that
is printed and sold on t-shirts, usually accompanied by the skull and
crossbones of a pirate flag. She explained that she was being "definitely
metaphorical".

Ah, she made the mistake of saying what she was thinking and so made
herself a target for more beatings.

Soon after, Ms. Oh heard from the ACLU manager overseeing its equity and
inclusion efforts, Amber Hikes, who cautioned Ms. Oh about her language. Ms.
Oh's comment was "dangerous and damaging", Ms. Hikes warned, because she
seemed to suggest the former supervisor physically assaulted her.

This should have seen the ACLU laughed out of court for suggesting
such a thing.

"Please consider the very real impact of that kind of violent language in the
workplace," Ms. Hikes wrote in an email. Ms. Oh acknowledged she had been
wrong and apologized. Over the next several weeks, senior managers documented
other instances in which they said Ms. Oh mistreated black employees.
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In early March, Ben Needham, who had succeeded the recently departed national
political director, reported that Ms. Oh called her direct supervisor, a black
woman, a liar. According to his account, he asked Ms. Oh why she hadn't
complained earlier. She responded that she was "afraid to talk to him".
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"As a black male, language like 'afraid' generally is a code word for me," Mr.
Needham wrote in an email to other ACLU managers. "It is triggering for me."
Mr. Needham, who is gay and grew up in the Deep South, said in an interview
that as a child, "I was taught that I'm a danger." To hear someone say they're
afraid of him, he added, is like saying, "These are the people we should be
scared of."

Again a case of someone reading into what was said instead of taking
it in without asking why she was afraid. Perhaps because of her
experiences with her previous boss as the report says he was abrasive.
Instead it appears this new boss took to email to denigrate Ms Oh
which again leads to a reason she should win this case against the
ACLU.

Ms. Oh and her lawyers have cited her own past: As a survivor of domestic
abuse, she was particularly sensitive to tense interactions with male
colleagues. She said she was troubled by Mr. Needham once referring to his
predecessor as a friend, since she was one of the employees who had criticized
him. Mr. Needham said he had been speaking only about their relationship in a
professional context.

So it's okay for Mr Needham to read into her words  but not okay for
her to read into his (thinking a friend might be protective of the
former boss or have similar behaviors.) I was going to say something
about her words but it's not that her words were in any way derogatory
but that he had thoughts from his past that they might be damaging to
him if others had similar thoughts. So he blamed her for something she
could not know about since he never brought up with her, but was
willing to bring up his feelings with other black managers so they
could all agree how evil Ms. Oh was for saying she was afraid to talk
to Mr Needham.

According to court records, the ACLU conducted an internal investigation into
whether Ms. Oh had any reason to fear talking to Mr. Needham and concluded
there were "no persuasive grounds" for her concerns.
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The following month, Ms. Hikes, the head of equity and inclusion, wrote to Ms.
Oh, documenting a third incident-- her own. "Calling my check-in 'chastising'
or 'reprimanding' feels like a willful mischaracterization in order to
continue the stream of anti-black rhetoric you've been using throughout the
organization," Ms. Hikes wrote in an email. "I'm hopeful you'll consider the
lived experiences and feelings of those you work with," she added.
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(Citing the ongoing case, the ACLU said Ms. Hikes was unable to comment for
this article.)
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The final straw leading to Ms. Oh's termination, the organization said, came
in late April, when she wrote on Twitter that she was "physically repulsed"
having to work for "incompetent/abusive bosses".
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As caustic as her post 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 about
workplace conditions with other colleagues, was engaging in what is known
legally as "protected concerted activity".
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"The public nature of her speech doesn't deprive it of NLRA protection," said
Charlotte Garden, a law professor at the University of Minnesota, referring to
the National Labor Relations Act, which covers worker's rights.
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She added that the burden of proof rests with 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 this is an outgrowth of
that, and therefore is protected," she said.
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The ACLU has argued that it has a right to maintain a civil workplace, just as
Ms. Oh has a right to speak out, and it has not retreated from its contention
that her language was harmful to black colleagues, even if her words were not
explicitly racist.
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Terence Dougherty, the general counsel, said in an interview that standards of
workplace conduct in 2024 have shifted, likening the case to someone who used
the wrong pronouns in addressing a transgender colleague. "There's nuance to
the language," Mr. Dougherty said, "that does really have an impact on
feelings of belonging in the workplace."
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