Restaurant Staff to Sue over ban on Navajo

[Harold F. Schiffman]

New York Times, December 20, 2002

Ban on Speaking Navajo Leads Restaurant Staff to Sue

By MICHAEL JANOFSKY

    PAGE, Ariz., Dec. 18 For more than 20 years, R.D.'s Drive-In has been
serving burgers, fries and shakes here by Lake Powell, all in relative
calm and obscurity. That changed when customers and employees began
complaining that other workers were making lewd comments about them in
Navajo. Worried about losing business, the owners asked all employees to
sign an agreement to speak English only, except when a customer could not
understand English.

"If you feel unable to comply with this requirement," the new work rule
said, "you may find another job." The burger joint is in a town nestled
beside the huge Navajo reservation here in northern Arizona. The owners
said their intention was to protect customers and workers from being
insulted by other employees in their native language. "Some of the things
they said were terrible," said Richard O. Kidman, whose family has owned
the restaurant since 1979. "Some workers said they felt verbally abused
and sexually harassed."

Instead of restoring peace, the policy only heightened problems, leading
four workers to walk off the job and thrusting R.D.'s Drive-In into the
national spotlight in the latest test of how far an employer may go in
setting rules about language. The Equal Employment Opportunity Commission
and the four former employees sued the restaurant contending that the
owners violated federal law by insisting that workers not speak Navajo,
their native language, on the job. Although the commission has sued other
employers over language restrictions in the last five years, winning
settlements in most cases and losing once, this is the first such case
that involves Native Americans, giving the commission a rare chance to
flex its muscles on behalf of an Indian group.

"This is a small case as far as litigation is concerned," said David
Lopez, the commission lawyer in Phoenix who is prosecuting the case. "But
it has become a big case for all the interest it has generated." Cultural
issues have grown delicate for many Native American groups, including
Navajos, the nation's largest tribe, with more than 270,000 members, as
tribal customs fade and fewer young members learn their native tongues.
Here in Page, where Navajos make up a big part of the work force, the
dispute has raised new tensions among the Navajos. At the same time, the
case has become a rallying cry for people who say English should be the
nation's official language. One group, ProEnglish, based in Arlington,
Va., is helping the restaurant owners pay their legal costs.

The conflict began two years ago, after members of the Kidman family said
some Navajo-speaking employees, usually men, made abusive or rude remarks,
often about body parts and sexual activities, that offended customers and
drove away potential job seekers. The Kidmans said they scoured the
Internet to see how other employers dealt with similar problems before
devising a policy that they said they believed was legal. After posting
it, they asked the workers to sign a form, indicating that they would
comply with the rule, and invited objectors to quit. All but the four
women signed. They left in protest and later filed complaints with the
commission. They said Mr. Kidman, 58, the family patriarch, and his
relatives had enforced a workplace practice that violated a section of the
1964 Civil Rights Act by prohibiting the use of a native language. After
the Kidmans rejected a proposed pact that they saw as an admission of
wrongdoing, the commission took the case to federal court in Phoenix in
September.

With bruised feelings all around, each side accuses the other of bad
faith. The women say they were fired and have lost their livelihoods. The
Kidmans say they quit. "I honestly believe that if we are forced to run
this business by allowing people to speak any language, we won't survive,"
Mr. Kidman said. "I can't see how we can hire and maintain employees under
those circumstances."

Elva Begay Josley, 34, a former cook at the drive-in who would not sign
the policy, said the Kidmans had only themselves to blame for their
predicament, and the possibility of $200,000 in fines, and legal fees that
could easily exceed $100,000. "If there were problems," Mrs. Josley asked,
"why didn't they talk to the people who were causing them and do something
on a person-to-person basis? That would have made a whole lot more sense.
But they never said anything about all this until they put up that
policy."

She also said the Kidmans had exercised a double standard, encouraging
Navajos to break the English-only rule and use their native language when
a sale depended on it. "It's O.K.," she said, "when it's to their own
benefit." Mr. Kidman's son, Steve, 34, who sometimes manages the
restaurant, said speaking Navajo would never have become a problem if not
for the few employees they have since quit who made others feel
uncomfortable. When complaints began, Mr. Kidman said, his mother, Shauna,
responded as Mrs. Josley suggested, by confronting an offender privately
or dropping a note in the pay envelope. She once posted a sign that said,
"No Navajo," he said.

But that was quickly removed after he studied E.E.O.C. guidelines and
found that restrictions were acceptable only if they did not cite a
specific language, if the employer could show that without them the
business would suffer and if employees were told the consequences if they
did not comply. Mrs. Josley and the other three women said the policy
never applied to Ms.  Kidman, who was born in Austria and spoke German
when her relatives visited, and it prohibited workers from speaking Navajo
on breaks.

Despite the suit, workers say the English-only policy improved the work
environment. Rolanda Redshirt, 21, a shift manager and a Navajo who said
the remarks made her feel uncomfortable, said workers now "totally get
along." "It was a horrible time back then," Ms. Redshirt said. "Those
words didn't need to be said. "But now people don't feel scared, fearful
or intimidated anymore." The issue has left scars in the among Navajos.
Not only do Ms. Begay and the others say they feel betrayed by the
Kidmans, whom they once regarded as family, but Navajos also said friends
and relatives had admonished them for keeping their jobs.

"My family said I shouldn't be working there," Ms. Redshirt said. "They
say it's not fair, the Kidmans are taking our language away. But I told
them they gave me a job, and they're my friends. They haven't done
anything wrong."