- Nike has agreed to provide employees in its California stores with transparent face masks and pen and paper to accommodate customers who are deaf and hearing-impaired for as long as its COVID-19 policy to provide face masks remains in effect (Bunn v. Nike, Inc., No. 4:20-cv-07403 (N.D. Calif., Jan. 27, 2021)).
- The agreement, if finalized, will settle lawsuit filed by a deaf woman whose attempt to shop at one of company's stores allegedly was stymied by the Nike's policy of providing opaque face masks to employees. "Not only do opaque masks muffle sound, but they also block visualization of the wearer's mouth and facial expressions, which people with hearing loss rely on to understand speech," according to the plaintiff's unopposed motion seeking approval of the deal. The plaintiff contended that Nike has a duty under state and federal law to provide additional aids or other reasonable accommodations to customers who are deaf or hard of hearing to ensure they can communicate effectively with the store's employees.
- Nike also agreed to post notices at California store entrances informing customers that accommodations are available for those with hearing impairments.
Title III of the federal Americans with Disabilities Act (ADA) requires places of public accommodation to remove barriers to access for individuals with disabilities.
Some state and local governments mandated masks in response to the coronavirus pandemic and some businesses have adopted their own rules as well. But compliance with COVID-19 safety guidance and orders may create obligations to accommodate individuals under the ADA and state and local laws, according to law firm Ballard Spahr.
"This case demonstrates that retail businesses and employers must make sure they consider the implications of policies related to COVID-19 safety procedures including employee masking requirements," Michelle M. McGeogh and Tara L. Humma, attorneys at law firm Ballard Spahr LLP, suggested on the firm's blog.
"Many businesses have required both employees and consumers to wear masks in accordance with federal, state, and local safety guidance, but masking policies must be implemented in a manner consistent with laws requiring accommodations for disabilities," the attorneys wrote.
In addition to recommending that retail businesses ensure their employees are trained to appropriately respond when a customer seeks an accommodation, the attorneys said that employers may need to consider similar accommodations for deaf or hearing-impaired employees in the workplace.