Back in March, I wrote about a peculiar proceeding involving the American Civil Liberties Union (ACLU) at the National Labor Relations Board (NLRB). In the case, ACLU employee Katherine Oh alleged that she was fired by the ACLU in retaliation for her criticism of ACLU management, which is a violation of the National Labor Relations Act (NLRA).
In the course of defending itself, the ACLU made at least three very bizarre arguments:
The General Counsel of the NLRB was unconstitutionally appointed.
The NLRB should expand its arbitration deferral policy and disallow Ms. Oh from having her claims heard at the NLRB.
Ms. Oh’s criticisms of her managers, which contain no explicit or implicit racial content to them, were nevertheless racist because her managers were black.
Late last week, the ACLU filed its post-hearing brief in the case, allowing us to see for the first time exactly why they think Ms. Oh’s comments were racist. The content of this brief is even more unhinged than the small preview of these arguments contained in the previously-released arbitration transcripts.
On page 21 of the brief, the ACLU points out that Ms. Oh told her supervisor, ACLU Deputy Political Director Ben Needham, that she was “afraid to raise work issues with him.” That a subordinate employee might be afraid to discuss work issues with the person who has significant power over whether they are fired, transferred, disciplined, or promoted is not especially surprising. Indeed, that this sort of power imbalance exists between bosses and employees is the main premise that underlies all of labor and employment law.
But, to Needham, this rather banal statement was extremely “triggering” (his word) for him. In his testimony, which the ACLU liked so much that they extensively quoted it in their brief, Needham compares Ms. Oh’s statement to the lynching of Emmett Till.
[MR. NEEDHAM]: I disagree with that narrative about myself. I disagree with that narrative about black man out there. And when people use that language, they are trying to put something into the world out there about you, and I just did not want that language to be out there about me.
As a black man in Mississippi when people use language like, I am afraid of you, I can't approach you, black men die because of that language. Emmett Till is a prime example of something like this happening in Mississippi towards a black man, and I live with that every single day.
It was triggering for me because I -- I -- when I hear that, I -- and I hear it from especially females, I hear that I am being attacked in a way that is telling people that they -- that this person that's using that language is feeling threatened and therefore, I am put into a position where I am threatened at that point. I'm afraid of the reaction that comes after language like that is being used, whether it's in the workplace or whether it is out in the public.
And generally, I live in a world where when that language is used by a nonblack person, the world thinks that they have to defend that person and protect that person, and that puts my life in danger.
In some ways, this is just the usual stuff you get from management attempting to concoct a pretextual reason for firing someone to provide cover for the actual, illegal reason for firing someone. And it’s not a particularly good effort at it because of how obviously silly it is.
But in other ways, it is a bit troubling to see the ACLU of all entities arguing that the speech rights provided to workers by the NLRA are not applicable so long as they are used to criticize a black manager who — either because he has lost his mind or is simply lying — claims that the criticism makes him fearful of his life. One of the amusing contradictions in the ACLU brief is that they accuse Ms. Oh over and over again of using hyperbolic language in her criticisms of management (something she’s allowed to do) and then turn around and describe the impact of this language on the psychological well-being of managers in the most hyperbolic way imaginable.
Ultimately, it is doubtful that the NLRB will say that these particular statements from Ms. Oh are somehow so racist that they lose protection of the NLRA. Notably, the ACLU’s brief never even discusses the controlling case on that question (Lion Elastomers) suggesting that even they have very little faith in this argument.
This simulation really sucks.