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

On Tue, 26 Mar 2024 12:22:15 -0400, moviePig <never@nothere.com>
wrote:

On 3/26/2024 11:48 AM, BTR1701 wrote:

In article <17c031331a3628f5$2091$3384359$c2d58868@news.newsdemon.com>,
  moviePig <never@nothere.com> wrote:
 

On 3/25/2024 5:59 PM, shawn wrote:

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.
>
---------------------
>
https://www.nytimes.com/2024/03/22/us/politics/aclu-employee-fired-race-bia
s.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.

>
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.
>
"I would note, and commend Ken, for spending 40 minutes explaining why
three discreet comments over a multi-month period of time constitute
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.
>
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".

>
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.
>
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."

>
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 hether Ms. Oh had any reason to fear talking to Mr. Needham and
concluded there were "no persuasive grounds" for her concerns.

 
So what happened to "only the offendee's feelings matter, not the
accused offender's intent"? Shouldn't Oh have the same right to have her
feelings validated, whether based in reality or not, that the black ACLU
employees have?

Simple enough to explain. She made the mistake of having a number of
black managers turn against her. In that organization it was a fatal
mistake, even though it was one she likely didn't know had happened
because it was happening in emails between the managers and,
apparently, no one was approaching her until they were about to fire
her.

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.

>

If the head of equity and inclusion is 'checkin in' with you that is
another bad sign. They were giving her the signs that she was on the
wrong path (even if legally allowed) but she didn't see them.

(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".

It may be protected legally but it is the sort of thing that is bound
to get back to the managers and shortly lead to them finding a way to
get rid of any employee making such statements.

"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 workers'
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."

>
There's so much going on in this drama that I feel an honest judgement
might require actually being there. E.g., there's indeed no excuse for
the illogical assertion that an offendee's feelings are "all that
mattered", so I'd have to suspect some missing context. Also, from this
distance, Ms. Oh sounds to me like a piss-ant I'd fire in a hot minute

 
She may very well be an asshole of the highest order but she's not a
racist, which makes getting fired for being one something the ACLU
should have to answer for.

>
Still, it sounds to me like the soap from this opera is enough to get in
one's eyes.  My takeaway from it all is the disappointing thought that
the ACLU might be losing some of its obsidian clarity.

Well, they did say they had gone on a hiring spree and went after some
of most vehement DEI proponents. So they very well may be losing their
way.