ACLU must reinstate employee fired for offensive language, judge rules

The American Civil Liberties Union (ACLU) illegally fired an employee who the group claimed used racist language and discriminated against some coworkers, a National Labor Relations Board (NLRB) judge ruled Wednesday.

Administrative law judge Michael Rosas ruled Katherine Oh, who served as senior policy counsel, was terminated for protected concerted activity, a right of workers to address work-related issues guaranteed by the NLRB Act.

The ACLU argued Oh, who was fired in May 2022, was terminated “because she exhibited a tendency to cast her complaints using hyperbolic and exaggerated language,” per the ruling.

The non-governmental organization claimed it tolerated the conduct until Oh “took it to an entirely different level” and showed “disregard” for other employees’ wellbeing, particularly her Black colleagues.

While Oh was an “outspoken employee and advocate for her colleagues,” who sometimes used “harsh” language, Rosas ruled the language was “typical of heated commentary” by an employee scrutinizing their managers or working conditions.

Rosas said the ACLU’s allegation that Oh targeted people of color in the workplace is “not borne out by the facts,” noting she criticized several managers, including white individuals.

Rosas ordered the ACLU to reinstate Oh to her previous role or a “substantially equivalent position” and to give her back pay.

A spokesperson for the ACLU said it will "certainly appeal" the ruling. 

A New York Times report on the ruling said Oh did not once say a racial slur or invoke race, according to the court filings, and complained about issues of sexism and the culture of public shaming and verbal abuse.

Rosas stated that the ACLU’s diplomatic action against Oh was motivated by retaliation for her consistent complaints.

The case was particularly notable because it placed the ACLU, one of the nation’s most vocal defenders of constitutional freedoms, under a microscope for violating the rights it usually works to maintain.

While the ACLU tried to promote policies to ensure a “work culture free of discrimination, harassment and retaliation,” it invalidated the concerns Oh expressed on social media just days before she was fired.

The post in question occurred on April 26, 2022, during which Oh wrote, “I can’t overstate just how physically repulsed I feel working under incompetent/abusive bosses. Just the waves of physical revulsion washing over me and making me nauseated…” according to the filing.

The ACLU argued this language, among other instances, harmed Black employees, and its warnings for Oh were ignored.

"The employee in question engaged in rank insubordination and repeatedly violated the ACLU’s policies that prohibit racial discrimination and harassment and require employees to maintain a respectful workplace," the ACLU spokesperson said in a statement to The Hill. "At the ACLU, we zealously defend the rights of our employees to express themselves and engage in collective bargaining. We also vigorously protect our staff members from mistreatment by enforcing principles and policies that promote a respectful workplace."

Oh celebrated the ruling, writing in a statement, “This decision sends a clear message: no one is above the law, including and especially powerful management officials claiming to champion civil liberties with their words while illegally doing the opposite with their actions.”

Updated at 10:09 p.m. EST.