EEOC backs Navajos, sues drive-in over English-only language policy

Nation's Restaurant News,  Oct 28, 2002  by Dina Berta

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PAGE, ARIZ. -- The owners of a hamburger drive-in here are embroiled in a landmark discrimination case that illustrates the difficulties of managing a diverse workforce.

The Equal Employment Opportunity Commission's district office in Phoenix filed a federal lawsuit earlier this month on behalf of Native American workers, who claimed they were allegedly prohibited from speaking Navajo on the job at R.D.'s Drive-In restaurant, which is located along the Arizona-Utah border.

Officials said the English-only suit, filed under Title VII of the Civil Rights Act of 1964, likely is the first-ever case the agency has filed on behalf of Native Americans to protect their language.

While English-only cases have been litigated in the courts before, rarely has the restaurant industry, which is well-known for its racially and ethnically diverse workplaces, been taken to task for instituting a language-specific policy.

The case points to a lack of clear guidelines from the courts to employers on how to control verbal communication on the job, said Peter Kilgore, general counsel for the National Restaurant Association in Washington, D.C.

"This is uncharted territory," Kilgore said. "Nothing has been definitively resolved. There have been cases where [English-only] is permissible if the employer can show it's a business necessity. But the EEOC is concerned when an employer imposes a blanket rule that it sees as overly broad."

The EEOC district office filed the lawsuit against the Kidman family, whose R.D.'s Drive-In is just a few miles from the Navajo Nation's reservation.

The suit alleges that the Kidmans discriminated against Native American employees by forcing those workers to sign a policy requiring them to speak only English while on the job. The suit also claims that employees of Navajo descent were terminated if they refused to sign the document.

"This case represents a rare lawsuit by the EEOC challenging workplace language restrictions directed at native languages," said Mary O'Neill, acting regional attorney for the agency's Phoenix office. "It is amazing that in a country that cherishes diversity, an employer will prohibit the use of indigenous languages in the workplace and terminate Native American employees who question whether that is lawful."

But the Kidmans, who referred to the EEOC's own Web site to develop the language policy, said they are being wrongfully accused of discrimination.

"For a mom-and-pop business, it takes all our time to run the restaurant, let alone try to figure out laws," exclaimed Steve Kidman, a defendant in the case along with his parents, Richard and Shauna Kidman. "We were doing the best we could. We came up with this policy, and now they say we are terrible."

The Kidmans have owned the small drive-in for 25 years. Located between the Navajo reservation and the Glen Canyon recreation area, which includes the popular Lake Powell vacation destination, the restaurant does a strong tourist business. According to Steve Kidman, the majority of employees over the years--as much as 95 percent at times--have been Navajo.

All employees have been fluent in English, but for years there have been conflicts and issues over employees speaking Navajo, he said.

He added that employees less fluent in Navajo allegedly believed other Navajo-speaking employees were ridiculing them. He also claimed that Navajo-speaking customers complained about overhearing rude and disparaging remarks by employees behind the counter and that a few non-Navajo-speaking employees also complained and threatened to quit.

The former employees--who first complained to the EEOC about two years ago--and the Kidman family hotly contest what has happened regarding the restaurant's English-speaking policy.

The lawsuit contends that the Kidmans instituted the following policy and demanded that employees sign it: "The owner of this business can speak and understand only English. While the owner is paying you as an employee, you are required to use English at all times. The only exception is when the customer cannot understand English. If you feel unable to comply with this requirement, you may find another job."

Employees who complained to the EEOC said they were fired for not signing the policy, or felt they were forced to quit because they did not agree with the policy.

"My clients, all four of them, opposed the policy," said attorney Franklin Hoover of Flagstaff, Ariz. "Their feeling is they were terminated."

Hoover represents Roxanne Cahoon, Doretta Benally, Elva Begay and Freda Douglass, all Navajos who worked from one to two years at R.D.'s Drive-h. The EEOC suit was filed on their behalf The commission is seeking back pay, front pay, pecuniary damages, compensatory damages including out-of-pocket expenses, and the right for the employees to return to their jobs.

Steve Kidman said he and his family based their English-only policy on information found at the EEOC's Web site, and that the information led them to believe they could issue an English-only rule if speaking in English was critical to the business.