Legal Alert

Businesses Face Risk Related to Mandatory Employee Masking Policies

by Michelle M. McGeogh and Tara L. Humma

February 1, 2021

Summary

In a class action lawsuit pending in the United States District Court for the Northern District of California, a consumer-plaintiff alleged that Nike Inc.’s policy requiring employees to wear opaque, Nike-branded facemasks is discriminatory. The plaintiff alleged that Nike’s policy discriminates against individuals who are deaf or hearing-impaired in violation of Title III of the Americans with Disabilities Act (ADA) as well as similar state laws. Last week, the plaintiff filed an unopposed motion seeking approval of a settlement wherein Nike has agreed to (1) provide guidance to its employees in California regarding how to accommodate hearing-impaired or deaf consumers; (2) post notices in its California store entrances informing customers that accommodations are available in these situations; and (3) provide its California stores with transparent face masks and writing materials in case customers request accommodations related to hearing impairment.

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.

The Upshot

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.
Nike has recently agreed to settle a case where a hearing-impaired consumer alleged that Nike’s policy requiring its employees to wear opaque, Nike-branded masks was discriminatory. The plaintiff alleged that although masking requirements serve an important public health purpose, Nike’s policy was implemented in a manner that discriminated against the deaf and hard of hearing who rely on speech-reading (lip-reading) to communicate.
Nike has agreed to a settlement where it will provide guidance to its employees on this issue; post notices in its California stores related to accommodations available; and provide its California employees with clear facemasks and writing utensils to accommodate customers who are deaf or hearing-impaired.
Retail businesses should anticipate these situations when enacting masking policies and ensure their employees are trained to appropriately respond when a customer seeks an accommodation.Additionally, employers will need to consider similar accommodations requested by employees with disabilities.

The Bottom Line

Retail businesses should be prepared to consider and respond to requests for accommodations as a result of mandatory masking policies. Additionally, all employers should be aware that employees may also seek accommodations for disabilities as a result of masking requirements.

Nike has agreed to settle a class action lawsuit brought by a customer who visited a California retail location and alleged Nike discriminated against individuals with disabilities by requiring its employees to wear opaque, Nike-branded facemasks. The customer, Cali Bunn (Bunn), is an individual who suffers from severe hearing loss. She alleged that she visited a Nike location in San Diego, California, in July of 2020. While at the retail location, she alleges that she was unable to communicate with the salesperson who was wearing an opaque, Nike-branded mask and that due to the inability to communicate, she and other deaf or hearing-impaired individuals are excluded from shopping at Nike.

Bunn filed the class action lawsuit in California State Court in San Francisco County. Nike removed the action to the United States District Court for the Northern District of California, San Francisco Division. Approximately three months after the lawsuit was removed to the Federal Court, Bunn filed an unopposed motion for approval of the class action settlement. The motion explains that Nike has agreed to settle the lawsuit by taking the following actions:

providing guidance to its employees in California regarding how to accommodate hearing-impaired or deaf consumers;
posting notices in its California store entrances informing customers that accommodations are available in these situations;
providing its California stores with transparent face masks and writing materials in case customers request accommodations related to hearing impairment;
paying plaintiff’s counsel’s fees in the amount of $85,000; and
paying Bunn $5,000 as the named plaintiff in the action.

The lawsuit brings to light a risk category that many retail establishments may not have been considering—that compliance with COVID-19 safety guidance and orders may create obligations to accommodate individuals in accordance with the Americans with Disabilities Act and similar state and local laws.

The lawsuit may also have broader implications. For instance, businesses that may not be consumer facing may need to consider accommodations for deaf or hearing-impaired employees in the workplace.

Ballard Spahr’s Accessibility team is prepared to answer questions regarding compliance with the Americans with the ADA and other state and local laws designed to protect the rights of people with disabilities. We help clients nationwide to assess their rights and responsibilities under the law, design programs to keep them in compliance, and defend them against claims of discrimination. Please contact us if we can assist you in understanding your company’s legal requirements and the measures your business must take to remain in compliance with the laws of the jurisdiction in which you operate.

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, including electronic, mechanical, photocopying, recording, or otherwise, without prior written permission of the author and publisher.

This alert is a periodic publication of Ballard Spahr LLP and is intended to notify recipients of new developments in the law. It should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own attorney concerning your situation and specific legal questions you have.