Winter, 2003

ProEnglish Aids Arizona Drive-In Restaurant Facing EEOC Lawsuit Over English
     ProEnglish has come to the aid of a family-owned Arizona restaurant that is being sued by the Equal Employment Opportunity Commission (EEOC) over the restaurant’s English language workplace rule. The EEOC filed its lawsuit in defiance of a 1994 Ninth Circuit Court of Appeals decision, which found that the EEOC was acting illegally when it filed a nearly identical lawsuit a decade ago.
     In announcing the decision to intervene, ProEnglish executive director KC McAlpin said, "This is a classic example of a federal agency that is attempting to bully a small business and defy the courts in order to pursue its anti-English agenda." He added, "It is not illegal for an employer to ask its employees to speak a language on the job that the employer can understand, and the EEOC knows it."
     RD’s Drive-In Restaurant is located in the town of Page (pop. 8,000), which adjoins a 25,000 square mile Navajo Indian reservation in northern Arizona. Since it opened 23 years ago, the restaurant has been owned and operated by Richard and Shauna Kidman. The Kidmans’ seven children have all worked in the family business and today their son Steve manages the restaurant.
      Because of its location about 90 percent of the restaurant’s employees and many of its customers over the years have been Navajo. And while all RD’s Navajo employees could speak English, typically less than half could also speak Navajo. From time to time the Kidmans would hear complaints from some employees about abusive comments being made in Navajo by some of their Navajo-speaking employees. But because they could not speak Navajo themselves, the Kidmans were helpless to respond.
     The problem became a crisis in the summer of 2000 when an employee threatened to quit because of sexual harassment in the Navajo language, and even some of RD’s Navajo customers complained about hearing foul and abusive language in Navajo.
     Determined to find a solution that complied with the law, the Kidmans looked up the EEOC’s own guidelines on the Internet and followed them in implementing their English-on-the-job rule. The guidelines specified that employees had to be notified in advance and told what the penalty would be for violating the rule. However, when Steve Kidman wrote the policy down and asked RD’s employees to sign a copy to acknowledge they had read it, four employees refused and quit their jobs.
     The four disgruntled employees hired an attorney and filed a complaint with the EEOC charging that RD’s policy discriminated against them on the basis of their national origin. After a shallow and one-sided investigation of the charges, the EEOC filed suit against the Kidmans in September. The suit asks the court to award the plaintiffs not only back pay, interest, and compensatory damages, but also punitive damages. Since RD’s is not incorporated and the Kidmans’ legal bills could easily cost $ hundreds of thousands, the family faces bankruptcy and the loss of the restaurant if the lawsuit against them succeeds. And like other employers sued by the EEOC, even if the Kidmans win the case, they are not entitled to recover the legal cost of defending themselves.
     To help the Kidmans fight back and defend an employer’s right to have English language workplace rules, ProEnglish is providing the Kidmans and their attorneys with pro-bono legal advice. ProEnglish also has agreed to match all contributions made to the Kidmans’ legal defense fund, which will be used to pay their attorneys’ fees. Last, ProEnglish urges anyone who wants to help, to visit the Kidmans’ Internet website at www.rddrivein.com, and sign their online petition to show their support.

The EEOC Defends Its War on English
The Washington Times Letters
Section, Dec. 9, 2002
“EEOC defends its decision”
     This letter is in response to Wednesday’s editorial about the Equal Employment Opportunity Commission’s lawsuit against the Arizona restaurant RD’s Drive-in (“Jackbooted liberalism,EEOC-style”). We wish The Times hadattempted to get all of the facts and speakto someone at the EEOC beforehand.
     What the editorial calls “facts” are incorrect and incomplete. The claims that the commission is attempting to bankrupt a small business are baseless. The commission is obligated to attempt informal settlement of any case before initiating litigation.
     In this case, as with all litigation filings, the commission exhausted its efforts to reach a voluntary negotiated agreement with the employer before filing the lawsuit. The commission’s lawsuit is at an early stage, and we have not yet estimated what damages, if any, we will seek. Title VII of the Civil Rights Act of 1964, the statute at issue, puts limits on the amount of money for which small companies can be held liable.
     The EEOC has a strong national program to educate small businesses about their rights and responsibilities. This past year alone, the commission held more than 4,000 events to educate and train managers of small businesses. We have small-business liaisons in each of our district offices nationwide who work cooperatively with employers to assist with compliance issues. If a charge is filed, the EEOC encourages voluntary mediation, as appropriate. More than 90 percent of participating employers and charging parties say they would try it again if subject to a charge.
     The EEOC conducted an in-depth investigation of this matter before the case was filed in court. The investigation included interviews with Richard and Shauna Kidman, who are the owners of RD’s. Our investigation found that RD’s had terminated four Indian women, some of whom speak Navajo as a primary language, because they would not sign an acknowledgment of an “English-only” policy.
     This policy explicitly stated, “If you feel unable to comply with this requirement, you may find another job.” All Navajo employees - not all employees - were asked to sign the acknowledgment. By its terms, the policy required employees to speak English “at all times” with only one exception - when a customer cannot understand English.
The editorial says the Kidmans implemented the restrictive language policy to stop sexual harassment at the establishment and that failure to do so would have resulted in a sexualharassment lawsuit against them.
     However, not once during the EEOC’s 13-month investigation did the Kidmans assert that an employee was being subjected to sexual comments in Navajo. The Kidmans have produced no evidence that they disciplined or dealt with the alleged harassers. Rather than implementing an illegal English-only policy, the Kidmans should have focused their attention on preventing the workplace harassment. In addition, the Kidmans could have contacted their local EEOC office for assistance in dealing with a potentially illegal work situation.
     An English-only rule must be adopted for non-discriminatory reasons and is justified if it is needed for an employer to operate safely or efficiently. Even if an English-only policy is crafted narrowly to meet these standards, an employer cannot use the policy to discriminate against a particular ethnic group. RD’s policy was unlawful because it did not meet these standards and because it targeted the Navajo language and was enforced primarily against Navajo employees.

H. Joan Ehrlich, Acting director
Office of communications and
legislative affairs EEOC,
Washington D.C.

[Editor’s Note: On Dec. 4th The Washington Times ran an editorial entitled “Jackbooted liberalism, EEOC-style.” The
editorial harshly criticized the EEOC lawsuit against the owners of RD’s Drive-In restaurant over their English-on-the-job rule. The EEOC replied to the editorial in a letter to the editor that appeared Dec. 9th. Two days later The Washington Times printed ProEnglish’s rebuttal to the EEOC. We reprint the EEOC letter to The Times and ProEnglish’s letter in reply below:]

The Washington Times Letters
Section, Dec. 11, 2002
“The EEOC overreached”
     A letter from H. Joan Ehrlich at the Equal Employment Opportunity Commission (EEOC) (“EEOC defends its decision,” Monday) criticizes the Dec. 4 editorial “Jackbooted liberalism, EEOC-style” for denouncing the EEOC’s decision to sue RD’s Drive-In in Arizona over the restaurant’s English-on-the-job rule. Among other things, Ms. Ehrlich says The Times should have checked the facts with the EEOC before publishing the editorial. Judging from the inaccuracies in Ms. Ehrlich’s letter, such fact checking would have done your editors little good.
     To cite one example: Ms. Ehrlich writes that the restaurant owners asked only their Navajo employees to sign and acknowledge a copy of the English-language workplace rule. That is false. The majority of the restaurant’s employees have always been Navajo, but typically fewer than half of those can speak Navajo as well as English. One of the four disgruntled employees who filed the original complaint with the EEOC is not even Navajo. Why would she file a complaint if she had not been asked to sign or do anything? EEOC falsehoods are beside the point, however. The heart of the matter is the vendetta the EEOC is waging against employers who have English language workplace rules. The EEOC is attempting to conceal its attack on English by saying that a policy that discriminates in favor of English on the job is the same as one that discriminates on the basis of “national origin,” prohibited under the 1964 civil rights law.
     This “language equals national origin” equation is a false construct that has been rejected over and over again by the courts. It is easy to see why. If national origin is the same as language, then language is the same as national origin. Under the EEOC equation, a Navajo who did not speak the Navajo language would not be a Navajo. The fact is that one can choose to change the language one speaks, but one can never change one’s national origin, regardless of where one happen to work or live. The EEOC effort to confuse the two concepts is simply a pretext for its illegitimate and unauthorized war on English. It makes businesses such as RD’s Drive-In settlement offers they cannot refuse and call the settlements “voluntary negotiated agreements.”
Your editorial’s description of the EEOC decision to sue RD’s Drive-In as “jackbooted liberalism” is right on target. Thank you for printing it.

KC McAlpin, Executive Director
ProEnglish
Arlington, Virginia

In the Courts
Victory in Michigan v. Barton
Janice Barton is a Michigan woman who was jailed for 4 days after being sentenced to a month and a half jail term, because she was overheard saying that people in this country should learn to speak English while using a derogatory name to refer to Hispanics. Barton’s private remarks to a companion on leaving a restaurant in Manistee, Michigan were overheard by an off-duty police officer who later filed a complaint under a city ordinance banning “insulting conduct.”
     Barton appealed her conviction. ProEnglish intervened
in the case and joined the Center for American Unity in filing a brief with the Michigan State Court of Appeals arguing that Barton’s conviction should be overturned on 1st Amendment grounds. On Nov. 1, the court threw out Barton’s conviction in a unanimous ruling.
     ProEnglish Chairman Bob Park commented, “ProEnglish does not condone the use of ethnic slurs of any kind. But this case was important to us because court records made it clear that Janice Barton was not convicted for making a slur, but for expressing her opinion that people in the U.S. should speak English.We are delighted by the court’s decision.”
ProEnglish Appeals Lawsuit Ruling to 4th Circuit
     ProEnglish and three physician co-plaintiffs have appealed a federal district court ruling that their lawsuit challenging the constitutionality of Executive Order 13166 (E.O. 13166) was premature. ProEnglish attorney Barnaby Zall filed back-to-back briefs in December with the 4th Circuit Court of Appeals in Richmond, Virginia. The briefs argued that it was both timely and appropriate to challenge the two-year-old order mandating translation services for non-English speaking persons.
     E.O. 13166 was signed Aug. 11, 2000 by President Clinton and requires all recipients of federal funds to provide translations and interpreters for people who don’t speak English, or risk prosecution for violating their civil rights. The order applies to almost every federal, state, and local government agency in the country as well as private contractors receiving federal payments including doctors who are reimbursed for patient care under Medicaid and Medicare. Because E.O. 13166 demands that all these entities pay the cost of translation services out of their own pocket without reimbursement, it amounts to a huge un-funded federal mandate that will cost state and local taxpayers billions of dollars.
     In March 2002 ProEnglish joined by several physicians challenged E.O. 13166 as an unconstitutional exercise of executive power and filed suit to overturn it. But the suit was blocked in August when the judge in the case granted a government motion to dismiss the case.
     The judge justified her ruling on the narrow technical
grounds that the Department of Health and Human Services (HHS) had not yet issued its “final” policy guidance to implement E.O. 13166 and therefore ProEnglish’s suit was “not ripe” because the policy was not in effect. In response ProEnglish attorney Zall quoted from an official HHS memorandum dated August 16, 2000, saying that the order was “effective immediately” and cited HHS sources telling Congress the agency was spending nearly half a million dollars a year to implement it.
     The 4th Circuit Court of Appeals is expected to rule on
ProEnglish’s appeal in the next few months.
Appeals Court Upholds Bilingual-Education Ban
     The 9th Circuit Court of Appeals threw out a lawsuit
challenging the constitutionality of California’s
Proposition 227, which dramatically curtailed bilingual
education programs in the nation’s largest educational
system. The citizens initiative was adopted by California voters by a 61-39 margin in a 1998 referendum.
     The ruling killed what little hope remained to bilingual
education advocates that they would be able to preserve the 30-year old system in which children are taught primarily in their native language, and avoid having to switch to using immersion-style techniques for teaching English. Since the initiative’s enactment, California schools that switched to using immersion techniques have seen dramatic improvement in student test scores in English as well as other academic subjects. Student test scores in schools that avoided making the change have lagged behind.
     Sharon Browne, an attorney for the Pacific Legal Foundation, the group that defended the measure in court said, “We are overjoyed that the court has recognized Proposition 227 as the lawful, nondiscriminatory solution to a broken-down system that provided nothing more than a disservice to California’s English-learning students.”
The Mexican American Legal & Educational Fund (MALDEF) brought the lawsuit arguing that although there are 57 languages spoken in California, Prop. 227 had a discriminatory impact on Hispanics and therefore violated the 14th Amendment’s equal protection clause. But the court found no evidence of discrimination.

"When immigrants learn English, they can enter the mainstream and are no longer reliant on self-interested politicians and advocacy groups."
—Damian Chadwick of New York City in comments posted online in response to a Wall Street Journal online poll Jan. 9 asking readers whether doctors should be required to provide translators

Hispanics Agree 9 to 1: Learning English is Critical
Nine out of ten Hispanics polled in a recent nationwide survey agreed it was important to learn English in order to succeed in the U.S. The poll of Hispanic opinion by the Pew Hispanic Center and the Kaiser Family Foundation, found that the importance of learning and speaking English was even higher among foreign-born Hispanics (91 percent), than it was among native-born Hispanics (86 percent).
     While there was good news about the importance Hispanics attach to learning English, in other respects the survey results on language were troubling. More of those polled reported being fluent in Spanish (74 percent) than English (51 percent), a trend reinforced by the ongoing record influx of Spanishspeaking immigrants. Almost twice as many Hispanics report being foreign born (63 percent) versus native-born (37 percent). The wave of immigration is also expanding the market for Spanish language media with a large majority of Hispanics reporting that they speak Spanish rather than English at home (53 percent vs. 28 percent).
     And according to the poll only 21 percent of all Hispanics choose to identify themselves as "American," as opposed to 54 percent who chose to identify themselves by their, or their parents’ country of origin e.g. Mexican, Salvadoran etc., and 24 percent who preferred the term "Hispanic" or "Latino." The nationwide poll was based on telephone interviews with almost 3,000 Hispanics during 2002.

Rep. Peter King Introduces Bill to Repeal EO 13166
Leads Push for English in Congress
     Representative Peter King (R-NY) from New York’s 3rd District on Long Island has picked up where retired Congressman Bob Stump left off and introduced a bill to repeal Executive Order 13166, the multilingual mandate signed by President Clinton that the Bush Administration has refused to revoke. King was joined by 28 other congressmen as original cosponsors on the bill, HR 300, which replicates HR 969 introduced by Stump in the last Congress.
     ProEnglish also has learned that the Long Island legislator, known to be a dogged fighter for the causes he champions, is planning to build on his already impressive leadership for official English as the 108th Congress gets underway.
     King was the author of the National Language Act, HR 280, one of the strongest official English bills introduced in the last Congress. The bill attracted 49 co-sponsors, the highest number of any official English bill introduced. ProEnglish has learned that in addition to HR 300, King plans to reintroduce and push for an even stronger version of HR 280 in the new Congress.
     In a letter to Rep. King ProEnglish Chairman Bob Park said, “On behalf of the more than 50,000 members and supporters of ProEnglish, I want to express our gratitude for your courage and continuing leadership on behalf of official English.” He added, “Like the vast majority of Americans from every background, you understand the critical part English plays in binding our diverse nation together and promoting its unity, harmony, and peace. I pledge our full support in your effort to convince your colleagues in Congress to follow your leadership.”
     King is serving his sixth term in Congress. ProEnglish members who want to express their appreciation directly, can write:
The Honorable Peter King
US House of Representatives,
Washington D.C. 20515.

Iowa Official English Sponsor Wins Seat in Congress
    The official English movement got a big boost when Iowa State Senator Steve King won his race to represent Iowa’s 5th District in Congress last fall. As State Senator, Congressman King led a determined, multi-year effort to pass a bill he authored making English the official language of Iowa.
     King’s persistence in the face of ugly opposition paid off last spring when Iowa Governor Tom Vilsack signed his bill into law, making Iowa the 26th state to declare English its official language. ProEnglish has learned that the newly elected congressman plans to continue his leadership on language by making an official English bill one of the first pieces of legislation he introduces in Congress.
     ProEnglish chairman Bob Park welcomed King’s election saying, “As a State Senator in Iowa, Rep. King proved his mettle, overcoming opposition from the state’s largest newspaper, the Des Moines Register, and the divisive forces of multiculturalism in order to pass official English legislation. We look forward to working with him to pass official English legislation in the new Congress.”
     Rep. Steve King should not be confused with his Republican colleague in the House, Rep. Peter King of New York, who also is expected to introduce an official English bill in the new Congress.

Refugee Service Prods Immigrants to Demand Interpreters

Despite its name, Lutheran Immigration and Refugee Services (LIRS) is a quasi-governmental agency that has grown fat in recent years thanks to its share of the hundreds of millions of dollars in taxpayer funds paid out annually to the refugee resettlement industry. According to a Nov. 30 report in the Boston Globe the federal government provides 80 percent of the LIRS budget. ProEnglish recently learned that LIRS is using some of its government money to force state and local taxpayers to shoulder the cost of providing interpreters for non-English speaking refugees it handles. LIRS is distributing a guide suggesting caseworkers arm newly arrived refugees with a card that says the following (the refugee is to present the card whenever he or she seeks welfare, health care, or other services from a federal, state, or local government agency).

“My name is ______________. I have limited English skills and require qualified language assistance in _____________. Title VI of the Civil Rights Act of 1964 requires that your office provide a qualified interpreter for me to have equal access to your services. It is a violation of the law for you to require me to bring my own interpreter in order to receive services. I you have any questions about how to comply with these legal requirements, call the U.S. Department of Justice Civil Rights Division at 1-888-848-5306.”

The problem is that that the message the card contains is a lie. Title VI of the 1964 Civil Rights Act says nothing about interpreter services being a “civil right” for non-English speaking refugees or anyone else. And Congress never even debated, much less enacted a law saying otherwise. Instead, the card relies on an illegitimate expansion of the meaning of “national origin” discrimination that was contained in President Clinton’s Executive Order 13166, and which the Bush Administration has refused to rescind. ProEnglish and several medical doctors are challenging the constitutionality of Exec. Order 13166 in court

“Should doctors be required to provide non-English speaking patients with translators?

89 percent of those responding to this question in a Wall Street Journal poll of its online readership said “NO.” The poll was conducted in conjunction with page 1 story in the newspaper Jan. 9^th about the growing burdens doctors face in providing translation services for their non-English speaking patients as mandated under Executive Order 13166 (“For Ill Immigrants, Doctors’ Orders Get Lost in Translation,” Wall Street Journal, Jan. 9, 2003).

Minneapolis Transit Officials Say Adding Somali Costs Too Much

Minneapolis transit officials voted against adding the Somali language to the new light rail ticket vending machines ordered for the city’s Hiawatha Avenue line linking downtown and the world-famous Mall of America in the city suburbs. But at the same time, the metropolitan transit authority ordered its staff to comb the agency’s budget in an effort to come up with the $116,000 that would be necessary to make the change.

If they succeed in finding the money, Somali would be added to Spanish, Hmong, and English as languages to be used in the ticket machines. The request came from advocates for thousands of Somali refugees who have been resettled in Minneapolis in recent years by the U.S. government.