Do as I Say….

The American Civil Liberties Union (“ACLU”) is a long-time champion of free speech, even when inconvenient or unpopular. Accordingly, it is striking when the ACLU is thrust into the position of defendant relative to such speech. In this case, the ACLU fired an in-house attorney following her alleged use of racist stereotypes and related misconduct. One issue is whether the employee’s language was truly racist (vs. harsh critiques of her superiors). The ACLU offered a broad definition of racially coded speech (which seemingly conflicts with the organization’s long-standing position on protected speech). The controversial events triggered an unfair labor practice case against the ACLU by the National Labor Relations Board (“NLRB”), as the NLRB claims the ACLU retaliated against Ms. Oh.