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EEOC Puts Small Business Between A Rock And A Hard Place |
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Written On: December 13, 2002 |
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“Between a rock and a hard place.” “Darned if you do, darned if you don’t.” “Catch 22.”
Take your pick. They all describe the no-win situation Richard and Shauna Kidman find themselves in, thanks to the federal government. You know, those nice folks in Washington, D. C. who say, “We’re from the government, and we’re here to help you.”
Well, they’re about to help the Kidmans into the poorhouse.
Richard and Shauna Kidman own RD's Drive-In in Page, Arizona. Most of their customers and employees are Navajo Indians from the neighboring reservation. Since the diner opened in 1976, the Kidmans have required their employees to speak English while on the job, but the policy wasn’t strictly enforced. That changed in May 2000 when a young Navajo girl complained to the Kidmans that two male Navajo employees had made sexually suggestive comments to her.
The Kidmans, who do not speak Navajo, had no idea anything was wrong, but as it turns out, their customers did.
They discovered that many of their Navajo-speaking customers and employees were offended by the explicit language and slurs they heard from some of the Kidmans’ employees. "We were losing customers and employees were offended by the filthy talk behind the counter, and we were about to get sued for sexual harassment by female Navajo employees,” Mr. Kidman told the Denver Post.
In response, Kidman announced that the English-only policy would be strictly enforced and asked the employees to sign a waiver that they had been informed of the policy. Most of the employees signed, but four Navajo employees filed a complaint with the federal Equal Employment Opportunity Commission (EEOC) accusing the Kidmans of discrimination for not permitting them to speak Navajo on the job.
In September, the EEOC filed suit against the Kidmans on behalf of the plaintiffs. If the Kidmans lose, they could face up to $200,000 in damages – on top of the $100,000 in legal fees they’ve racked up.
This is where the “darned if you do, darned if you don’t” part comes in. The EEOC sued the Kidmans for discriminating against their Navajo employees by requiring them to speak English. But, if the Kidmans had not taken those steps to protect their female employees in the workplace, the EEOC would have sued them for allowing sexual harassment.
This is nuts. If this policy is allowed to stand, it will create a regulatory nightmare for small employers trying to supervise a bi-lingual workforce. Imagine what that would be like for employers in Washington where a single business can have workers who speak a half dozen different languages.
It is time – past time, really – to inject some common sense into federal regulations. Any reasonable person can see that the EEOC has put the Kidmans in a regulatory trap from which there is no escape. Whichever way they turn, they lose. And should the Kidmans appeal the EEOC action and win, they get nothing except a mountain of legal bills. And most likely, they will have lost their business in the process.
Washington, D. C., should take a cue from Washington state. We have the Equal Access to Justice rule, which allows employers who successfully appeal a state agency ruling to recoup up to $25,000 in attorney’s fees. It doesn’t compensate employers for the time, productivity, and business they lose while fighting unfair or abusive regulatory rulings.
It’s not enough, but it’s a start.
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