Fortune Small Business published a lengthy article about RD's Drive-in, a restaurant which is being sued by the E.E.O.C. over their English-language workplace rule requiring emplyees to use English on the job. ProEnglish is helping the owners raise money to defend themselves in courts. The article, by Carlye Adler, appears in the Sunday, May 18th, 2003 issue. Below are exceprts from the article:

At first Richard Kidman couldn't figure out why, after 23 years of running R.D.'s Drive-In, everything seemed to be falling apart.

It had never been easy to manage a business in Page, Ariz. (pop. 6,500), 130 miles from the nearest city and surrounded by Mars-red rocks and soaring cliffs. But lately Kidman's problems, especially employee turnover, were only getting worse. New hires were quitting after only a few days on the job. His restaurant has a staff of about 20, yet he went through 52 people in three months. He even considered giving signing bonuses--unheard-of for a burger joint. On the other side of the counter, things weren't much better. Page's first drive-thru, once flocked to for its green-chili cheeseburgers and chocolate shakes, was losing customers.

It took Kidman a long time to link his problems to what he now calls the "trash talking" going on behind the counter. Since R.D.'s is only three miles from the Navajo reservation, nearly all of Kidman's employees are Native Americans. About half of them speak Navajo, often in the restaurant. Kidman doesn't speak the language (it's so complex that it was used as military code in World War II), which over the years had been an inconvenience but not a significant problem. Then he got a call from an employee, telling him that she was quitting because some of his staff had been making rude comments in Navajo about her. He soon learned that other workers had been similarly offended. Customers had overheard vulgar remarks, and even the Kidmans weren't spared--they'd been given Navajo nicknames. (Let's just say his was a part of the male anatomy; his wife, Shauna, allegedly had a similar moniker, but no one will reveal it because it's said to be too offensive.) "There was bad language, talk about female body parts, and talking about people meanly," says Ro Redshirt, a Navajo employee who's been at R.D.'s for five years.

When Kidman realized what was going on, he took what he considered a necessary step: requiring that his workers speak English while on the job. Steven Kidman, the eldest of the Kidmans' seven children, did some research on the website of the U.S. Equal Employment Opportunity Commission (EEOC), the branch of the federal government designed to protect employees from discrimination based on race, religion, sex, or national origin. Following what he interpreted as the EEOC's guidelines, Steven wrote an English-only policy, posted it, and asked employees to sign in acknowledgment.

The Kidmans never anticipated what happened next. Four Navajo workers, offended by the policy, refused to sign. They left their jobs--whether they quit or were fired is under dispute--and found a lawyer, who said the policy was discriminatory and filed a complaint with the EEOC. After an investigation, the EEOC found the policy in violation of the Navajos' civil rights. When the Kidmans refused to retract it or to apologize, the EEOC filed a lawsuit…

…Last year the EEOC received 228 cases challenging English-only policies, and it's likely to see more this year. With minority populations growing and an increasing number of Americans speaking English poorly or not at all--up 65% since 1990, according to the U.S. Census Bureau--the issue isn't going away…

…This one could set a precedent, though--the EEOC has never filed an English-only suit on behalf of Native Americans. "The EEOC wants a new law," Kidman says. "There's a small mom-and-pop business on the other side--what an easy target." But his business might not survive the fight. The case is scheduled to go to trial next year, and Kidman says it will cost about $100,000 in legal fees before it ever gets there. If it does reach trial, the fees would escalate to $300,000, he says, which in most employment-discrimination lawsuits cannot be recovered even if the defendants win. A loss in court--and damages--could push that amount to more than $500,000. That's not all. Because the business is not incorporated, Kidman and his wife are named personally as defendants in the suit. It's possible they could lose not just the restaurant but their house as well.

The government says it has no intention of bankrupting the family, and it has already made offers to settle, contingent upon an apology and a reversal of the policy. But Kidman has refused each offer, maintaining that he's done nothing wrong. "It was a decision to help our business survive," he says. …

…The financial burden of fighting has created another set of problems for the Kidmans. Because $7,200 is nowhere near enough to cover their legal fees, they've aligned themselves with an Arlington, Va., group called ProEnglish, which has pledged to match what the Kidmans raise, up to $45,000. ProEnglish calls itself an "English-language advocate" and promotes things like official English laws, an end to bilingual education, and the right of employers to maintain the English language in the workplace…

…The EEOC still wants the policy retracted, an apology, and damages of something less than the legal cap ($50,000 per plaintiff, plus back pay). "We are not trying to put them out of business--not at all," says EEOC attorney David Lopez. He says that the EEOC takes the size of an employer into consideration. "We'd ask for way more money if it was McDonald's or Taco Bell." For their part, the Kidmans demand an apology from the government and $100,000 to cover their legal fees.

Unfortunately, there aren't many precedents for a case like this one (see How the Law Actually Works), so if the case goes to trial no one knows quite what to expect. The Kidmans take some solace in the fact that Arizona is a conservative state, one with its own English-only initiative in the school systems. But the jury will be carefully picked, and the government will probably select as many Native Americans as possible. As employment attorney Vicki Donati says, "The Kidmans won't get the sympathy factor."

The great irony in all this, says Kidman, is that the atmosphere at R.D.'s is now "heaven." Of the current 15 employees, 14 are Navajo, and eight speak the language, though they're still forbidden to speak it while on the clock. There's a new one-page policy, written by the Kidmans' attorney, stating that Navajo customers may be served in Navajo, and breaks are not included in the ban. Employees are apparently content. The Kidmans say they haven't had to replace anyone since October.

But while things are better at the restaurant, the case has had a big impact on the Kidmans' personal life. They've put off plans to retire soon and pass the business to their kids. Steven Kidman now works for less than minimum wage, and he had to move his family--including a daughter and pregnant wife--into his parents' basement. Still, "We'll go to trial," says Richard Kidman. "If we don't take a stand, they'll do it to the next guy."

See also: ProEnglish's press release about RD's Drive-in.