Arizona: Ninth Circuit Court Plays Father Knows Best

Harold F. Schiffman haroldfs at
Sat Jun 2 16:01:38 UTC 2007

Ninth Circuit Plays Father Knows Best
By William Perry Pendley
Friday, June 1, 2007

Richard and Shauna Kidman operate RDs 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

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 EEOCs demand that they engage in settlement

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 EEOCs demands. The
EEOC would draft the agreement and send it to the Kidmans; the Kidmans
would sign it.

The next day, the EEOCs 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.

Before the U.S. Court of Appeals for the Ninth Circuit, the Kidmans
pointed out that well-established (black letter) law provides that no
settlement may be enforced unless there is agreement on all material terms
and, in their case, there was no such agreement. One appellate judge
agreed that that was the law; however, the other two judges held that it
would be unfair to the Kidmans not to enforce their agreement with the
EEOC. Moreover, held these two judges, Congress wants EEOC cases settled;
thus, not to accede to the EEOCs demands in the case of the Kidmans would
be contrary to congressional intent. This month, the Kidmans will ask the
three-judge panel and the entire Ninth Circuit to rehear the case.


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