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.
The next day, the EEOC’s version of the agreement arrived. To the shock and horror of the Kidmans, it bore little resemblance to what they had agreed to the day before. There would be no agreement, they said; they wanted to go to trial. In time, they obtained the services of a pro bono law firm and prepared for a long siege. Incredibly, the EEOC filed a motion arguing that there had been a settlement agreement and the federal court should enforce it. Over the Kidmans’ objections, the court ruled that there had been an agreement on some “material terms” and that the court would enforce that portion of the settlement.