Since March, I have been following a case at the National Labor Relations Board (NLRB) involving the American Civil Liberties Union (ACLU) firing one of its employees for criticizing the way some of the organization’s management treated its workers (I, II, III). One of the remarkable things about the case was ACLU’s claim that the employee in question — Kate Oh — was acting in a racist manner because the bosses she criticized were black, which the organization argued gave it the right to fire her.

Yesterday an administrative law judge (ALJ) at the NLRB decided in favor of Ms Oh, finding that the ACLU both refused to transfer and then subsequently fired Ms Oh for engaging in the protected activity of criticizing her working conditions. Interestingly, the seventy-three-page decision does not merely conclude that the ACLU’s conduct violated the National Labor Relations Act (NLRA), but it also makes it clear that Ms Oh was not merely a habitual complainer, but also had very legitimate grievances against her managers, grievances shared by many of her coworkers.

Under the longstanding Wright Line framework, to prove that an employer took an adverse action against an employee for engaging in protected activity, one must show that the worker engaged in such activity, that the employer had knowledge of such activity, and that the employer bore animus toward such activity. In this case all three elements were clearly present: