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Law360 (July 30, 2020, 5:25 PM EDT ) Nike Inc. has been hit with a proposed class action in California state court, alleging its policy that employees wear opaque Nike-branded masks as a safety measure to combat the coronavirus pandemic discriminates against deaf and hard of hearing people who rely on lipreading.
For the safety of its workers and customers, Nike requires its retail workers to wear cloth masks bearing the Nike swoosh trademark, but it creates a communication barrier for people who are deaf and hard of hearing by muffling speech and visually blocking peoples' mouths, according to Cali Bunn's complaint filed in San Francisco Superior Court on Wednesday.
"For the substantial percentage of deaf and hard of hearing people ... who rely on speechreading (also known as lipreading) to understand speech, Nike's face mask requirement interferes with their ability to hear and to communicate," Bunn said.
Under the Americans With Disabilities Act and California's Disabled Persons Act, Bunn said, retails stores have a duty to adopt policies or make reasonable modifications to existing policies to make sure people with disabilities are not excluded, denied service or otherwise treated differently than people without disabilities.
An easy fix, Bunn said, would be to use face masks that have a clear plastic insert over the mouth to permit speechreading. Using those masks, which cost about the same as traditional cloth masks, would ensure the safety of Nike's employees and customers without discrimination against deaf and hard of hearing customers, according to the complaint.
Or Nike could employ American Sign Language interpreters or closed captioning devices, Bunn said.
Bunn, a California resident with severe-to-profound hearing loss, is seeking to represent a class of all people in California who are deaf or hard of hearing, along with a statutory damages subclass consisting of all class members who have shopped or wanted to shop at a Nike store in California whose employees wore opaque cloth face masks, according to the suit.
The proposed class consists of about three million people, according to the complaint, while the proposed subclass consists of more than 1,000 people.
On July 12, Bunn visited a Nike retail store in San Diego to buy shoes, according to the complaint, and all of the employees on the sales floor were wearing opaque face masks that obstructed their mouths and facial expressions. When she asked one employee for help finding a pair of shoes, she said it was hard to hear or understand what the salesperson was saying.
When Bunn said she was having trouble hearing him and asked him to repeat himself, the salesperson expressed frustration, which she found to be embarrassing and demeaning. The salesperson didn't make any effort to effectively communicate with her, according to the complaint.
When Bunn asked her mother to tell her what the salesperson had said, the salesperson then exclusively communicated with her mother, according to the complaint, which only further embarrassed her.
Bunn said she has shopped in Nike stores before and would like to do so in the future, but can't return because of the negative impact the company's mask policy has on her ability to hear and communicate.
The suit claims violations of the Americans With Disabilities Act, the Unruh Civil Rights Act and California's Disabled Persons Act. It seeks an injunction requiring Nike to take all necessary steps to ensure the services offered in its retail stores are fully and equally enjoyable to people who are deaf or hard of hearing, as well as damages and attorney fees.
Michael Rubin of Altshuler Berzon LLP, counsel for Bunn, told Law360 on Thursday that the hope is that the lawsuit will bring public attention and alert other companies to the problem. He said the point of the lawsuit is simply to fix a problem that companies like Nike probably didn't anticipate.
"Anyone who is hard of hearing or has a hard of hearing family member knows this is a serious issue," Rubin said. "The goal is to get the word out to the retail community in general that, while they should be praised for requiring their workers and customers to wear masks, there are foreseeable consequences for hard of hearing customers and employees."
Rubin said the problem can be easily remedied and that it's good for business and customer relationships.
The National Association of the Deaf encourages the use of clear masks or face shields to make it easier for deaf and hard of hearing people to communicate and said there are a number of companies making clear masks. But the organization also suggested that people use writing to communicate with those who are hard of hearing.
A representative for Nike did not immediately respond to a request for comment.
Bunn is represented by Michael Rubin and Eve H. Cervantez of Altshuler Berzon LLP and James F. Clapp and Marita Murphy Lauinger of Clapp & Lauinger LLP.
Counsel information for Nike was not immediately available.
The suit is Cali Bunn v. Nike Inc., case number unavailable, in California Superior Court, County of San Francisco.
--Editing by Nicole Bleier.
For a reprint of this article, please contact reprints@law360.com.
