A proposed class action claims Nike’s requirement for retail employees to wear face masks during the COVID-19 pandemic is discriminatory against deaf or hard-of-hearing consumers in that the policy hampers their ability to communicate.
Though intended to protect the public, the opaque, Nike-branded masks the defendant requires its retail store employees to wear create “unique communications problems” for deaf and hard-of-hearing individuals who rely on speechreading (i.e. lipreading) and the visualization of facial expressions to hear and communicate, the lawsuit says.
“These mandatory masking requirements serve an important public health and safety purpose,” the complaint stresses. “But they can be—and in this case have been—implemented in a manner that discriminates against deaf or hard of hearing individuals in violation of state and federal law.”
According to the case, the Americans with Disabilities Act (ADA), as well as California’s Unruh Act and Disabled Persons Act, dictate that retail establishments have an affirmative duty to adopt or revise policies and provide auxiliary aids and services sufficient “to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently” than those without disabilities. The case alleges that Nike’s existing mandate for employees to wear opaque masks featuring the company’s “swoosh” logo has unlawfully excluded deaf and hard-of-hearing individuals from obtaining equal access to Nike’s services.
Per the complaint, there are many ways Nike could accommodate disabled persons while continuing to mandate employees’ use of masks or face coverings.
“For example, many companies sell face masks that have transparent plastic inserts over the mouth area to permit speechreading,” the suit reads. “Use of such masks, which cost approximately the same as traditional cloth masks, would ensure the safety of Nike’s employees and customers without discriminating against those customers who are deaf or hard of hearing.”
Other reasonable accommodations, including the use of American Sign Language interpreters and closed captioning devices, are also “readily available,” the case says.
“None of these accommodations would pose an undue burden on Nike, a company whose revenues in 2019 exceeded $39 billion,” the lawsuit reads.
The plaintiff in the lawsuit, a California resident with severe-to-profound hearing loss, describes an “upsetting experience” during which she unsuccessfully attempted to communicate with a masked employee in a San Diego Nike store:
“Because the salesperson was wearing a mask, plaintiff could not hear or understand what the salesperson was saying in response to her questions. Plaintiff indicated to the salesperson that she was having difficulty understanding him because she was hard of hearing. Twice she asked the salesperson to repeat himself. The salesperson responded by expressing frustration with plaintiff, which plaintiff found embarrassing and demeaning to her. The salesperson did not lower his mask, provide an auxiliary aid, or make any other attempt to effectively communicate with plaintiff. Plaintiff then asked her mother, who was standing nearby, what the salesperson had said. From that point on, the salesperson communicated with plaintiff’s mother exclusively, instead of with plaintiff, causing further embarrassment to plaintiff and depriving plaintiff of the friendly and personalized customer service that Nike’s hearing customers enjoy, solely because plaintiff has a disability.”
Nike, the lawsuit alleges, has failed to provide any of its salespersons with clear face masks or other auxiliary aids, nor any training or guidance on how to accommodate customers who are deaf or hard of hearing. The plaintiff says she has been deterred from visiting the defendant’s stores as a result of Nike’s discriminatory policies and the negative impact on her ability to hear and communicate with sales staff.
The lawsuit seeks an injunction barring Nike from “continuing to discriminate against” customers with hearing-related disabilities.
ClassAction.org’s coverage of COVID-19 litigation can be found here and over on our Newswire.