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| 1 minute read

Nike mask-wearing settlement may foretell future requirements for employers who deal with members of the public.

The pandemic caused U.S. employers who have employees that interact with the public to implement a mask-wearing requirement. But the requirement is just that: all employees must wear a mask. It typically does not go further and say what type of mask or how mask wearing should be altered (if at all) when dealing with customers who have difficulty hearing or are deaf. But a recent settlement between Nike and one of its customers may change all that. 

Cali Bunn, a 22-year old deaf college student, sued Nike under Title III of the Americans with Disabilities Act and California disability rights laws. The gravamen of her class-action Complaint was that deaf and hard of hearing customers cannot effectively communicate with Nike store employees who wear opaque face masks because of their inability to allow for lip-reading. She asserted that "Nike has a duty to provide auxiliary aids or other reasonable accommodations to customers who are deaf or hard of hearing to ensure they can communicate effectively with Nike's employees." Rather than fight these claims, Nike chose to settle and agreed to provide its California staff with access to transparent face masks, among other concessions.

There is a part of me that thought about dismissing this development due to the fact that vaccines are on the way and, well, it's California, and the legal environment in California is just weird (especially to a Midwesterner like me). But I can't help but think about the precedent this sets, not only if we are required to wear masks again in response to another pandemic (God-forbid), but also more broadly when there is an interplay between public health and safety and the requirements of the ADA and state disability laws. Nike elected to avoid this fight in this case. It will be interesting to see whether other employers will follow suit in future cases.    

Nike has agreed to outfit its California workers with see-through masks as part of a proposed settlement to end class allegations that the shoe company's pandemic-era policy mandating masks prevents deaf and hard-of-hearing customers from reading employees' lips.