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.
 
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
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
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.
 
"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."
 
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.
 
"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?"
 
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, 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.
 
"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."
 
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.
 
"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."
 
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.
 
"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".
 
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.
 
"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.
 
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".
 
"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."
 
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.
 
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.
 
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.
 
(Citing the ongoing case, the ACLU said Ms. Hikes was unable to
comment for this article.)
 
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".
 
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".
 
"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.
 
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.
 
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.
 
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."
 
 

The whole ACLU organization feels like a collection of "progressive"
snowflakes falling all over themselves to take offense at everything
their colleagues say. If this leads to the disintegration of this
version of the ACLU, that would not seem like a terrible outcome.


--
Rhino