Compliance Matters TM
Nike's ADA Settlement with Hearing Impaired Customer is a Cautionary Tale About the Unintended Consequences of COVID-19 Mask Mandates 
A new class action settlement involving California Nike stores provides a lesson to hotels, restaurants, retail stores and any other customer oriented businesses about the need to accommodate hearing impaired customers and employees. We explain below.
 
Like so many other companies responding to the COVID-19 pandemic, Nike instituted a mask wearing protocol in its retail stores to protect employees and customers alike. In September 2020, a deaf customer initiated a class action against Nike under the customer access provisions of the Americans with Disabilities Act and related California statutes. The customer alleged that she and other hearing impaired customers were denied "access" to the goods and services Nike offered, in violation of the ADA and related state laws. The Plaintiff claimed that the opaque masks worn by Nike employees did not allow she and other hearing impaired customers to communicate clearly with Nike employees. While the Plaintiff in this case readily acknowledged that face coverings are necessary to protect public health, she contended that the universally worn opaque masks muffled sound and prevented deaf and hearing impaired customers from reading employees’ lips, which they needed to be able to do to communicate.
 
Nike disposed of the claim relatively quickly via a settlement in which the sporting goods manufacturer agreed to provide transparent or see-through masks to all of its California employees to use when they need to assist hearing-impaired customers. In addition, Nike will equip store personnel with an adequate supply of clean pens and paper to assist these customers in transacting business with store personnel and post signs outside of its stores advising hearing impaired customers about these accommodations. The agreement would be in effect as long as masks are required for COVID-prevention.
 
Similarly, the employment provisions of the ADA and state law require employers to reasonably accommodate the needs of hearing impaired job applicants and employees. Thus, the same actions should be done in most work settings to enable hearing impaired employees to do their work. 
 
The Nike class action signals a coming wave of similar class actions that can be easily avoided with a little forethought about the needs of hearing impaired customers and employees. Until the mask mandate is lifted, all businesses should consider having a stock of clear masks and pens/paper on hand to enable hearing impaired customers to transact business and hearing impaired employees to do their jobs. It’s a low cost solution to what could be an expensive (and entirely avoidable) legal entanglement.
 
If you have any questions about the matters discussed in this issue of Compliance Matters, please call your firm contact at (818) 508-3700, or visit us online at www.brgslaw.com

Sincerely,
Richard S. Rosenberg
Katherine A. Hren
Stephanie B. Kantor
Ballard Rosenberg Golper & Savitt, LLP 
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