A class action lawsuit filed in September 2020 against Nike alleging that its policy requiring retail employees to wear Nike-branded, opaque masks discriminated against deaf and hard of hearing consumers under Title III of the Americans with Disabilities Act (“ADA”) deserves attention from retail banks and non-bank financial services companies with brick-and-mortar facilities open to the public. The case’s important takeaway is that compliance with COVID-19 safety guidance mandating masks can also create obligations to accommodate individuals with disabilities under the ADA and similar state laws.
The named plaintiff alleged that Nike’s policy discriminated against deaf and hard of hearing consumers because they cannot read the salesperson’s lips to communicate. Last week, the plaintiff filed an unopposed motion seeking approval of a settlement (currently pending court approval) under which Nike would be required to (i) provide guidance to its employees on how to properly accommodate deaf or hearing-impaired consumers; (ii) post notices in its California stores related to accommodations available for such individuals; (iii) provide its California employees with clear facemasks; and (iv) provide writing instruments for consumers who are deaf or hearing-impaired to communicate with sales staff, if needed. Nike would also be required to pay Bunn $5,000 as the named plaintiff and pay her attorney’s fees in the amount of $85,000.
Under Title III of the ADA, any place of “public accommodation” (which specifically includes banks) must make their goods, services and facilities accessible to individuals with disabilities, and – if needed – provide accommodations for such individuals upon request to ensure effective communication. Typically, requests for accommodation are made by individuals with disabilities and a business develops a customized solution for that individual, but the Nike case suggests that employees should be better trained to accommodate customers, including how to effectively communicate with deaf individuals while masks are mandated during the COVID-19 pandemic.
Retail banks and non-bank financial services companies with brick-and-mortar facilities open to the public may wish to consider implementing the steps Nike has agreed to take in the proposed settlement agreement as a way to mitigate risk. Although many financial institutions likely already provide ADA training to front-line staff (e.g., tellers) and pens/pencils to consumers who visit their facilities, institutions may want to consider enhancing ADA training, posting a notice in branch locations, and providing clear facemasks for employees. The Nike case may also have broader implications. For example, financial services companies that are not consumer-facing may need to consider additional accommodations for deaf/hearing-impaired employees in the workplace.
For more information on this pending case, please see our legal alert below:
https://www.ballardspahr.com/alertspublications/legalalerts/2021-02-01-businesses-face-risk-related-to-mandatory-employee-masking-policies
