New Class Action Lawsuit Alleges Face Mask Policies Discriminate Against the Hearing-Impaired

San Francisco–On July 30, 2020, the law firms of Altshuler Berzon LLP and Clapp & Lauinger LLP filed the first-ever class action lawsuit against a major American retailer to address the adverse impacts of mandatory face-mask policies on people who are deaf and hard of hearing. The lawsuit, Bunn v. Nike, Inc., was filed in the Superior Court of the State of California, County of San Francisco.

There are over 37 million deaf or hard of hearing people in the United States, with more than three million residing in California. Many of these people rely on speechreading (also known as lipreading) to communicate. Because of the COVID-19 pandemic, many retailers, including Nike, require their employees to wear face masks when dealing with the public. However, the face masks distributed by Nike to its employees are made of opaque fabric that covers the wearer’s mouth and blocks the wearer’s facial expressions, which makes speechreading impossible and presents a significant barrier to effective communication for deaf and hard of hearing people.

Under the Americans with Disabilities Act (ADA), the California Unruh Act, and the California Disabled Persons Act, retailers like Nike are required to modify their policies and provide auxiliary aids and services to enable their deaf and hard of hearing customers to communicate effectively. For example, Nike could easily comply with those legal obligations, without discriminating against the hearing-impaired, by distributing to its workforce any of the inexpensive and readily available types of masks manufactured with clear plastic windows over the mouth area to facilitate speechreading. Other reasonable accommodations are also possible.

The lawsuit does not dispute the important need for people to wear face masks to limit the spread of the novel coronavirus. However, there are low-cost alternatives to traditional opaque face masks that would protect employees and customers without discriminating against those who are deaf or hard of hearing. The current pandemic does not give retailers a license to discriminate against people with disabilities.

The lawsuit alleges that Nike’s face mask policy violates the ADA as well as California law. The lawsuit seeks injunctive relief, statutory damages of up to $4,000 per affected customer, and additional remedies. For press inquiries please contact Michael Rubin (415-421-7151 ext 311; mrubin@altber.com) or James Clapp (760-209-6565 ext 101; jclapp@clapplegal.com).

Tags: ADA, Class Action, coronavirus, COVID-19, Deaf, Discrimination, Face Mask, Hard-of-Hearing