In order to resolve a COVID-era class action lawsuit concerning its retail stores, Nike has agreed to provide all retail store employees with transparent, see-through face coverings to accommodate its customers who are deaf or hard of hearing and rely on lip reading. Nike’s new policy is part of a proposed settlement following a class action suit against the shoe company’s retail operations.
Like most retailers grappling with the COVID-19 pandemic, Nike requires its retail store employees to wear face coverings when interacting with customers. Cali Bunn, a 22-year-old college student who is deaf, visited one of Nike’s retail stores in California. During her visit, Bunn contended she was unable to communicate clearly with a Nike employee due to his opaque face covering. Bunn is not alone, according to the National Institute of Health there are more than 37.5 million adults in United States that suffer from a hearing impairment.
Under both federal and California law, retailers are required to provide reasonable accommodations to customers with impaired hearing. Denying “goods, services, facilities, privileges, advantages, or accommodations” to a person with a qualifying disability may violate the Americans with Disabilities Act.
Shortly after her visit to the Nike retail store, Bunn filed a class action suit against Nike challenging its retail stores’ policies and failure to accommodate shoppers who are hearing impaired and rely on lip reading to communicate. While Bunn agreed that face coverings are necessary to protect public health, she alleged that Nike’s policy of mandating face coverings adversely impacts people who are deaf or hard of hearing. Bunn alleged that face coverings muffle sound and block visualization of the wearer’s facial expressions, which people with hearing loss rely on to understand speech. Bunn claims that Nike failed to offer her any accommodation to reconcile this issue.
After Nike reportedly investigated the allegations, in consultation with experts, Nike agreed to resolve the case and immediately provide accommodations to its in-store customers who are deaf or hard of hearing. Specifically, Nike will educate its employees on how to accommodate its customers who are having difficulty communicating due to an employee’s face covering and it will outfit its employees with transparent face coverings and clean pen-and-paper sets. Though employees are not expected to wear the transparent face coverings at all times, Nike will require they be readily available. Nike will also post notices outside its stores to advise customers about the available accommodations. The settlement also requires Nike to pay attorneys’ fees of $85,000 to counsel for Plaintiff Bunn and to pay the Plaintiff $5,000 as a service award.
What This Means for Employers, Retailers, Restaurants, and Other Service Industries
The Nike class settlement signals to businesses that they should review their face covering policies and evaluate whether changes and/or accommodations are necessary to ensure compliance with state and federal laws, such as the Americans with Disabilities Act.
Additionally, though the Nike case was limited to the retail setting, the issues in the case could extend to a variety of industries and workplaces. With COVID-19 cases surging, there is no definitive date of when California will lift its face-covering mandate. Until then, California businesses should remain hyper-vigilant in balancing the health and safety of its employees and necessary accommodations for employees and customers alike.
Should you have any questions about your COVID-19 policies and practices, contact the authors or your usual trusted advisors at AALRR.
Amber Healy has extensive experience litigating class actions and complex matters in state and federal courts throughout California. Her practice focuses on the defense of employers and management in class action ...
Brian Wheeler leads the firm’s Intellectual Property and Data Security & Privacy team. His practice focuses on intellectual property, data security and privacy, and high-stakes complex commercial litigation and white collar ...
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