Proposed Settlement Reached in ADA Face Mask Lawsuit

San Francisco, CA:  A proposed class action settlement was announced today in a first-of-its-kind lawsuit alleging that a major retailer’s mandatory face mask policy discriminates against customers who are deaf or hard of hearing.

In response to the Covid-19 pandemic, defendant Nike, Inc. requires all of its retail employees to wear face masks or coverings when interacting with customers.  However, according to the lawsuit, Nike’s face mask policy violates the Americans with Disabilities Act by making it more difficult for people with hearing disabilities to communicate.  The lawsuit claims that not only do the opaque masks worn by Nike’s employees muffle sound, but they also cover the wearer’s mouth and facial expressions, which people with hearing disabilities rely on to understand speech.

As part of the settlement, but without admitting liability, Nike has agreed to provide reasonable accommodations to its customers who are deaf and hard of hearing.  These accommodations include making transparent face masks available to its California store employees, providing guidance to its employees about how to accommodate customers who deaf or hard of hearing, and posting signs at the entrance to each California store notifying customers who are deaf or hard of hearing that they may request additional assistance.  Nike has agreed to implement these changes by the end of January 2021.

The case is called Bunn v. Nike, Inc. and is pending in the United States District Court in the Northern District of California.  The plaintiff class is represented by Michael Rubin and Eve Cervantez of Altshuler Berzon LLP and James F. Clapp of Clapp & Lauinger LLP.

Mr. Clapp, who is deaf himself, said he is pleased with the proposed settlement. “My client and I agree that face masks are necessary to protect public health, but they also create communication problems for the millions of people in the U.S. who are deaf or hard of hearing.  We appreciate Nike’s proactive approach in dealing with this important but overlooked problem.”

“I hope that this settlement causes other retailers to follow suit voluntarily,” Clapp added.  “Accommodating people with disabilities is not only legally required, but it shows a commitment to good customer service.”