Nike Develops Transparency in Response to Disability Suit
Photo Source: Olgierd, Covid-19 Handmade Face Mask, Flickr (Apr. 11, 2020) (CC BY 2.0)
By: Eva Scherer* Posted: 03/01/21
A twenty-two-year-old is changing the face of Nike’s COVID-19 policies, literally.[1] Cali Bunn, a college student who is deaf, brought a suit challenging Nike’s policy that allows their employees to wear opaque face masks while working in their retail stores.[2] Bunn claims that this policy discriminates against individuals who are deaf or hard of hearing because they are not able to easily communicate with the employees.[3] Bunn’s legal challenge highlights the barriers individuals who are hearing impaired encounter in everyday communication.[4] These challenges have increased exponentially due to COVID-19 social distancing and other mandates.[5]
Suit Against Nike
On July 12, 2020, while in a San Diego Nike store, Bunn attempted to ask a retail employee for assistance finding shoes.[6] However, during this interaction she was unable to converse with the employee as she could not read their lips or hear them through their mask.[7] According to Bunn, the employee became frustrated with her inability to understand them and instead communicated through Bunn’s mother.[8] Bunn claims that this interaction was embarrassing and demeaning.[9] Soon after, she filed a complaint against Nike challenging their retail employees’ use of opaque face masks as discriminatory.[10] Nike responded with seventeen different defenses including that they acted in good faith to meet California’s mask requirement.[11]
According to her complaint, Nike’s policy violates the Americans with Disabilities Act, the California Unruh Act, and the California Disabled Persons Act as it does not reasonably accommodate potential customers with hearing impairment.[12] The use of opaque masks does not allow for deaf individuals to read the lips of employees they are speaking with and often makes their speech muffled.[13] Bunn brought the claim in the San Francisco Superior Court in late July 2020, following the experience she had in the California Nike retail store.[14] In her suit, Bunn proposed a class of deaf individuals who have visited or have attempted to visit this California Nike store since June 18, 2020.[15]
Ultimately, both parties reached a settlement, “to provide relief to the thousands of potential customers who may visit Nike stores in California while the COVID-19 mask mandate remains in effect.”[16] The injunctive relief requires Nike to provide transparent face masks to all of their California retail workers so that individuals who are hearing impaired are able to read retail worker’s lips.[17] Nike will also provide pens and notepaper to all retail employees to encourage written conversations with deaf individuals as another form of communication.[18] Bunn was awarded $5,000 by Nike following the settlement.[19]
Other Mask Related Suits
Bunn’s suit against Nike, advocating for disability rights in response to their opaque mask policy, is not the first mask-related suit this year.[20] Since March of 2020, face masks have become the norm in most places of business.[21] This has resulted in many different disability related claims against the mask wearing requirement.[22]
In August of 2020, more than sixty plaintiffs filed a complaint against Giant Eagle, a Pennsylvania supermarket chain, claiming the mask mandate policy violated the ADA.[23] Ultimately, the Western District of Pennsylvania found that the supermarkets’ interpretation of Pennsylvania’s mask requirement in public places through the implementation of their own mask policy, was reasonable.[24] On the other side of the spectrum, employees have filed suits against their companies for not maintaining adequate safety protocols through relaxed mask mandates.[25] Clearly, companies are struggling to strike a balance between accommodating the rights and needs of their employees and customers.[26]
Recommendations to Businesses
The Southeast ADA Center and Burton Blatt Institute at Syracuse University published a guide answering common questions regarding face mask mandates and ADA compliance.[27] Here, they answer the question if businesses and government agencies are permitted to require employees and customers to wear face masks in the affirmative.[28] However, this publication highlights that under the ADA, businesses must consider reasonable modifications to their mask policies and practices so that individuals are able to “benefit from the good or services that are provided”.[29] The National Deaf Center emphasizes the value of clear face masks in solving communication problems that come with mask wearing.[30]
The Nike injunction and settlement seemingly addresses both current major concerns: accommodating customers with hearing impairment and keeping their employees safe from COVID-19.[31] This settlement should serve as both a warning and guidance for all companies whose mask mandate may infringe upon the right to reasonable accommodation under the ADA, leaving them susceptible to litigation.[32] Companies, especially retailers, should make the transition to clear masks to comply with ADA standards of reasonable accommodation.[33]
*Staff Writer, Jeffrey S. Moorad Sports Law Journal, J.D. Candidate, May 2022, Villanova University Charles Widger School of Law.
[1] See Sahar Nicolette, Nike Workers Get Clear Face Masks in Class Action Settlement Deal, Top Class Actions (Jan. 28, 2021), https://topclassactions.com/coronavirus-covid-19/1006710-nike-workers-clear-face-masks-deaf-customers-settlement/ (identifying woman bringing claim against Nike’s mask policy).
[2] See id. (providing issue arises from lack of ability to see mouths of employees).
[3] See id. (referencing New York Times article explaining how mask mandate marginalizes individuals with hearing disabilities).
[4] See Andrea Yu, COVID-19 poses separate challenges for deaf community, The Star (July 9, 2020), https://www.thestar.com/life/2020/07/09/covid-19-poses-separate-challenges-for-deaf-community.html (noting individuals who are deaf and hard of hearing already face challenges communicating in public).
[5] See id. (providing sign language, lip reading, and writing notes all are made more challenging with recent health concerns and mask mandates).
[6] See Ken Stone, Clear Path Seen to Settling Nike Suit: Fashion Valley Store ‘Demeaned’ Deaf Star, Times of San Diego (Nov. 20, 2020), https://timesofsandiego.com/business/2020/11/20/clear-path-seen-to-settling-nike-suit-fashion-valley-store-demeaned-deaf-star/ (noting Bunn requested that Nike employee repeat themselves twice).
[7] See id. (providing this experience “depriv[ed] plaintiff of the friendly and personalized customer service that Nike’s hearing customers enjoy”).
[8] See id. (highlighting Nike employee did not attempt to provide accommodation or auxiliary aid).
[9] See id. (explaining Nike has also not trained their employees to accommodate deaf customers).
[10] See id. (recognizing Bunn’s support for state’s mask mandates while wanting accommodations for hearing impaired individuals).
[11] See id. (arguing plaintiff is not entitled to injunctive relief as she “has not suffered, and is not at risk for suffering, irreparable harm”).
[12] See Craig Clough, Nike Agrees For Calif. Workers To Have Transparent Masks, Law 360 (Jan. 27, 2021), https://www.law360.com/employment-authority/other/articles/1349298/nike-agrees-for-calif-workers-to-have-transparent-masks- (noting under federal and state law, employers must provide auxiliary aids or other reasonable accommodations).
[13] See Nicolette, supra note 1 (specifying this suit is meant to assist both deaf and those hard of hearing which is why muffled speech is discussed).
[14] See Daniel Wiessner, Nike will give workers transparent masks to settle deal customer’s lawsuit, Westlaw Today (Jan. 28, 2021), https://today.westlaw.com/Document/I8f603050619111eba8cab51f2e1abe3d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=cblt1.0 (noting suit came a month after Nike began requiring employees to wear masks).
[15] See id. (stating class could include more than one thousand Nike customers).
[16] See Nicolette, supra note 1 (noting months of investigation into claims took place prior to decision).
[17] See id. (explaining Nike will also post signs outside of their stores to notify customers of their right to accommodations).
[18] See Wiessner, supra note 14 (providing alternative method of communication for those who do not use lip reading).
[19] See id. (noting $85,000 in legal costs were also covered by Nike in settlement).
[20] See Amber L. Roller, No Mask, No Service: Supermarket Sued for Disability Discrimination over Strict Face Covering Policy, Ogletree Deakins (June 4, 2020), https://ogletree.com/insights/no-mask-no-service-supermarket-sued-for-disability-discrimination-over-strict-face-covering-policy/ (recognizing “growing trend of disability access lawsuits challenging face mask policies” in May 2020).
[21] See id. (specifying Pennsylvania’s face-covering order at issue in supermarket suit).
[22] See id. (stating many retailers have implemented similar mask requirements in Pennsylvania).
[23] See Caroline Larsen, Federal Court Upholds Enforcement of Grocery Store’s Face Covering Policy over Customer Claims of Disability Discrimination, Nat’l L. Rev. (Oct. 29, 2020), https://www.natlawreview.com/article/federal-court-upholds-enforcement-grocery-store-s-face-covering-policy-over-customer (noting one court stated that plaintiff entered store with intent to cause scene and create confrontation because of his beliefs).
[24] See id. (providing Giant Eagle’s policy permitted alternative face coverings and provided clear communication of their policy outside stores).
[25] See Janie F. Schulman, Neil S. Tyler, & Michelle Sosa-Acosta, Are You Covered? Warnings From Recent Face Mask Litigation, Morrison Foerster (Sept. 30, 2020), https://www.lexology.com/library/detail.aspx?g=d692698e-2f3b-4716-8d35-7615b91e5a9f (discussing suit brought by McDonalds employees and their family noting that employees do not regularly wear masks).
[26] See id. (identifying businesses need for flexibility to satisfy obligations to both employees and customers).
[27] See The ADA and Face Mask Policies, ADA Southeast (Nov. 10, 2020), https://www.adasoutheast.org/ada/publications/legal/ada-and-face-mask-policies.php (targeting concerns of both customers and businesses so that individuals are aware of their rights under state mask ordinances and ADA regulations).
[28] See id. (noting importance for businesses to stay up to date on CDC guidance as this answer could change).
[29] See id. (changing policies such as mask requirements is considered reasonable modification).
[30] See Communicating With a Face Mask: What Colleges Need to Know for Deaf Students (and Everyone), Nat’l Deaf Center (July 30, 2020), https://www.nationaldeafcenter.org/news/communicating-face-mask-what-colleges-need-know-deaf-students-and-everyone (recommending clear masks as “part of an overall access strategy” for college campuses).
[31] See Nicolette, supra note 1 (providing multiple options for enhanced communication with hard of hearing individuals while maintaining mask safety for employees).
[32] See Stone, supra note 6 (noting goal of litigation against Nike is to “get the word out to the retail community” about concerns for hard of hearing individuals).
[33] See Ari Bendersky, Why Clear Masks Benefit Most People, Not Just Those With Disabilities, Sales Force (Oct. 30, 2020), https://www.salesforce.com/blog/we-need-clear-face-masks/ (explaining this need for clear masks touches all industries).
