William Perry Pendley

Richard and Shauna Kidman operate RD’s Drive In and Exxon in Page, Arizona, and have for more than three decades. In 2000, much to their horror, they discovered that some of their employees, most of whom are Navajo from the nearby Navajo Nation, were sexually harassing fellow employees in the Navajo language. It was not just the female employees who objected to what was being said in the kitchen; many of the Kidmans’ customers had heard that offensive language as well and had stopped patronizing the restaurant.

Neither Richard nor Shauna speaks Navajo, nor does their son Steve who helps to run the place; therefore, in order to ensure their ability to monitor employee behavior and preserve a proper working environment, the Kidmans, in accordance with information set out on the website of the Equal Employment Opportunity Commission (EEOC), adopted an English language workplace policy. Nonetheless, in 2002, the EEOC filed a lawsuit against the Kidmans asserting that, by “discriminating” based on language, they had engaged in “racial discrimination” in violation of the federal Civil Rights Act.

The Kidmans, through legal counsel, responded that language is not a proxy for race and that the EEOC knows that well, having lost a number of legal cases on that specific issue. Moreover, the Kidmans claimed, because their employees’ conduct had exposed the Kidmans to a sexual harassment lawsuit, which ironically would have been brought by the EEOC, they had the right to adopt the English language policy. Nonetheless, as the trial preparations dragged on and with them their legal fees, the Kidmans reluctantly agreed to the EEOC’s demand that they engage in settlement negotiations.

Unbeknownst to the Kidmans, but well known to lawyers who deal with the EEOC and its radical, agenda-driven lawyers (one Washington, D.C. attorney, after years of dealing with EEOC lawyers, calls them “lunatics”), the EEOC was engaged in its usual modus operandi: the EEOC sues a company, drives up the cost of responding with motions and trial preparations, and then demands that the company enter into a consent decree or settlement agreement. For hour upon hour, the Kidmans found themselves on the receiving end of a strange type of shuttle diplomacy in an Arizona courthouse, as their attorney went back and forth between them and the EEOC and its “clients,” the “offended” former employees. In the end, exhausted, they compromised and agreed to many of the EEOC’s demands. The EEOC would draft the agreement and send it to the Kidmans; the Kidmans would sign it.

William Perry Pendley

William Perry Pendley is President and Chief Legal Officer at the Mountain States Legal Foundation.

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