Kate Oh had no idea of an employee to go along with.
During her five years as an attorney for the American Civil Liberties Union, she was a relentless critic of her superiors, known for sending long, explosive emails to human resources protesting what she described as a hostile workplace.
She saw herself as a whistleblower and advocate for other women in the office, garnering flattering attention in an environment she said was rife with sexism, burdened by unmanageable workloads and hampered by a culture based on fear.
Then the tables turned and it was Ms. Oh who was slapped with a charge of serious misconduct. The ACLU said its complaints about several superiors — all of whom were black — used “racial stereotypes.” 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 the use of certain phrases and words demonstrated a pattern of deliberate anti-Black hostility.
On one occasion, according to court documents, he told a black superior that he was “afraid” to talk to him. In another, he told a manager that their conversation was “pedagogical.” And in one meeting, she repeated a satirical line likening her bosses’ behavior to “beatings”.
Did her language contribute to racism? Or was he just talking tough about bosses who happened to be Black? That question is the subject of an unusual unfair labor practices lawsuit brought against the ACLU by the National Labor Relations Board, which accused the organization of retaliating against Ms. Oh.
A trial in the case concluded this week in Washington, and a judge is expected to rule in the coming months whether the ACLU was justified in terminating it.
If the ACLU loses, it could be ordered to reinstate it or pay damages.
The heart of the ACLU’s advocacy — advocating an expansive definition of what constitutes racist or racially coded speech — has struck some free-speech lawyers as peculiar, as the organization has traditionally protected the right to free expression, operating on the principle that he may not like what someone is saying, but he will fight for the right to say it.
The case raises some interesting questions about the wide range of employee conduct and speech that labor law protects — and how the nation’s preeminent civil rights organization is on the opposite side of that law, arguing that those protections shouldn’t apply for the previous employee.
A lawyer representing the ACLU, Ken Margolis, said during a court hearing last year that it did not matter if Ms. Oh had no racist ill will. All that mattered, she 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. “He caused serious harm to black members of the ACLU community.”
Rick Bialczak, the lawyer representing Ms. Oh through her union, responded sarcastically, saying he wanted to congratulate Mr. Margolis on his exhaustive presentation of the ACLU’s evidence: three interactions Ms. Oh had with co-workers that were reported to human resources; .
“I would note and commend Ken for spending 40 minutes explaining why three discrete comments over a period of several months constitute serious harm to ACLU members, black employees,” he said.
Yes, he had complained about the Black supervisors, Mr. Bialczak acknowledged. But her immediate boss and that boss’s boss were Black.
“These were her supervisors,” 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 that liberals vilify. This week, he argued in 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 aligned itself with a progressive politics strongly focused on identity. .
“Much of our work today,” as she explains on her website, “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 on partisan causes it might have avoided in the past, such as running an ad in support of Stacey Abrams’ 2018 campaign for governor of Georgia.
“They expanded radically and raised far more money — hundreds of millions of dollars — from left-leaning donors who were desperate to push back against the Trump administration’s outrageous excesses,” said Lara Bazelon, a law professor at the University of San Francisco. was critical of the ACLU “And they hired people with a lot of extremely strong views about race and workplace norms. And along the way, they themselves turned to a place of excess.”
“I’m searching the record for any 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 documents and interviews with lawyers and others familiar with the case.
The ACLU hosted an organization-wide virtual meeting under dire circumstances. The national political director, who was Black, had left suddenly after multiple complaints about his aggressive treatment of subordinates. Ms Oh, who was one of the employees who had complained, spoke during the meeting to express her disbelief that conditions would actually improve.
“Why not expect ‘the beatings will continue until morale improves,'” he 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. He explained that it was “definitely metaphorical.”
Soon after, Ms. Oh heard from the ACLU’s director of equality and inclusion efforts, Amber Hikes, who warned Ms. Oh about her language. Ms Oh’s comment was “dangerous and damaging”, Ms Hikes warned, because it appeared to suggest her former boss had physically assaulted her.
“Consider the very real impact of this kind of violent language in the workplace,” Ms. Hykes wrote in an email.
Ms. Oh admitted that she had made a mistake and apologized.
In the following weeks, senior executives 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 had called her immediate supervisor, a black woman, a liar. According to his account, he asked Ms Oh why she had not complained earlier.
She replied that she was “afraid” to talk to him.
“As a black man, language like ‘afraid’ is generally a code word for me,” Mr. Needham wrote in an email to other ACLU directors. “It’s a trigger 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 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 cited her own background: As a survivor of domestic abuse, she was particularly sensitive to tense interactions with male colleagues. She said she was bothered that Mr Needham once referred to his predecessor as a “friend” as he was one of the employees who had criticized him.
Mr Needham said he was only talking 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 be afraid to speak with Mr. Needham and concluded that there were “no compelling reasons” for her concerns.
The following month, Ms. Hykes, the head of equity and inclusion, wrote to Ms. Oh, documenting a third incident — her own.
“Calling my check-in ‘punitive’ or ‘reprimand’ feels like a deliberate mischaracterization in order to continue the flow of anti-Black rhetoric you use throughout the organization,” Ms. Hykes wrote in an email.
“I hope you will consider the lived experiences and feelings of those you work with,” he added. (Citing the ongoing case, the ACLU said Ms. Hykes was unable to comment for this article.)
The final straw that led to Ms Oh’s termination, the organization said, came in late April, when she tweeted that she was “physically repulsed” at having to work for “incompetent/abusive bosses”.
As scathing as her post was – likely grounds for dismissal in most cases – 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 working conditions with other co-workers, engaged in what is legally known as “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 covers workers’ rights.
He added that the burden of proof is on the NLRB, which must convince a 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 that this is an outgrowth of that and therefore protected,” he said.
The ACLU has argued that it has the right to maintain a civil workplace, just as Ms. Oh has the right to speak. And she hasn’t backed down from her claim that her language was harmful to her black colleagues, even if her words weren’t explicitly racist.
Terence Dougherty, the general counsel, said in an interview that standards of behavior in the workplace in 2024 have changed, likening the case to someone who used the wrong pronouns when addressing a transgender co-worker.
“There’s a nuance to language,” Mr. Dougherty said, “that really has an impact on feelings of belonging in the workplace.”
