Civil Case Over Face Masks Could Impact Home Sales Offices

Nike, Inc. has reportedly agreed to settle a class action lawsuit filed by a deaf California resident who alleged that she faced discrimination due to the wearing of face coverings when she visited a Nike store. The case could impact any business that deals with customers requiring accommodation, including home sales offices.

The plaintiff visited a Nike store in San Diego in July 2020 to purchase shoes and claims that Nike, in violation of federal and California law, did not provide her with a reasonable accommodation because a Nike employee wore an opaque mask that made it impossible for her to speechread. Specifically, she alleged violations of Title III of the Americans with Disabilities Act (ADA) and similar state laws.

One month prior to her store visit, Nike had instituted a statewide policy requiring all of its retail store employees to wear face coverings, as required by state mandate to reduce the spread of COVID-19. Upon entering the store, the woman attempted to ask a Nike employee for assistance to help her locate a pair of shoes. However, she was unable to communicate with the employee because he was wearing a Nike-mandated opaque face mask, which muffled his speech and prevented her from reading his lips. She alleged that although she told the employee she could not understand him because of the mask, the employee failed to offer her any type of reasonable accommodation.

Terms of Settlement

The relief provided by the settlement is non-monetary in nature, and requires Nike to implement the following practices:

1. Nike will make available to each Nike retail store in California a sufficient number of masks with transparent windows over the mouth area to enable those Stores’ employees to obtain and use transparent-window masks during conversations with customers who are deaf or hard of hearing who indicate they prefer to communicate through speechreading;
2. Nike will make available clean pens and paper at each store to facilitate the exchange of notes with customers who are deaf or hard of hearing and indicate they prefer to communicate in writing;
3. Nike will provide guidance and communications to employees working in stores regarding how to accommodate customers who are deaf or hard of hearing and regarding the availability of proper usage of the transparent masks and clean pens and papers with such customers; and
4. Nike will post notices near store entrances to advise customers who are deaf or hard of hearing that accommodations are available.

The ADA is the primary federal law protecting the rights of individuals with disabilities. Title III of the ADA prohibits discrimination against individuals with disabilities in places of public accommodation.

Real estate sales offices are places of public accommodation, and if the sales office for a housing development were located in a model home, then the area used for the sales office would be considered a place of public accommodation. Consequently, compliance with COVID-19 mask mandates may create obligations to accommodate individuals in accordance with the ADA and similar state and local laws.

If you have questions about implications of COVID-19 safety-related policies you are advised to consult with your local attorney.

The case is Bunn v. Nike, Inc. United States District Court, Northern District of California, Oakland Division (Case No. 20-cv-7403-YGR).