Article contributed by Jennifer M. Schmalz, Ellenoff Grossman & Schole LLP
A recent lawsuit brought on behalf of the deaf and hard-of-hearing community should prompt employers to consider taking measures during the COVID-19 pandemic, such as providing transparent face masks for employees and clean writing tools for customers, in order to comply with federal and state disability discrimination laws.
Nike, like most employers in 2020, began requiring its retail employees to wear masks to prevent the spread of COVID-19. The company provided solid-colored, Nike-branded masks to all employees. Thereafter a customer, who is deaf, entered one of Nike’s San Diego-area stores to purchase some shoes. Like other deaf and hearing-impaired customers, that customer relies on her ability to read other’s lips to communicate. Masks like the ones Nike-provided create unique communication problems for deaf and hard of hearing people, because they muffle speech and block visualization of the mouth area and facial expressions.
In a first-of-its-kind lawsuit filed in September of 2020, Nike was sued by the customer, who claimed, in a class action lawsuit, that Nike violated state and federal law, including Title III of the Americans With Disabilities Act (the “ADA”) by denying “goods, services, facilities, privileges, advantages, or accommodations” to a person with a disability. The customer also alleged that Nike failed to provide auxiliary aids and services to ensure effective communication for customers who are deaf and hearing-impaired, as required under the ADA.
Nike just recently settled the lawsuit, which is pending court approval, agreeing to provide transparent masks, as well as pens and paper, to its retail employees so they can more easily communicate with deaf and hearing-impaired customers. Nike also agreed to:
- Pay $85,000 in attorneys’ fees and costs;
- Provide guidance to California store employees on how to accommodate customers who have difficulty communicating due to employees’ non-transparent face covering;
- Post notices in all California store entrances noting that accommodations are available for customers with hearing loss;
- Ensure that transparent window face masks and clean writing tools are available upon request; and
- Pay the class plaintiff up to $5,000.
Nike may still face additional monetary claims from class members. This groundbreaking lawsuit certainly will not be the last of its kind brought against employers who do not take steps to comply with their obligations under the ADA.
Restaurants, as places of public accommodation under the ADA, need to proactively ensure that their employees are trained on how to respond to requests for accommodations from deaf and hard-of-hearing customers, particularly during the COVID-19 pandemic. If transparent face masks are not immediately available, employees can provide clean pens and paper to communicate with customers in order to minimize any liability under the ADA. Notify your customers by using signs, such as the ones posted at Nike stores, which state the following: “If you prefer to be assisted by an employee who is wearing a clear face mask, or if you need any other accommodation, please ask an employee for assistance.” Restaurants would be wise to implement these easy and inexpensive steps to ensure access to all customers, including those who are deaf or hearing-impaired.
In addition to accommodating customers, restaurants should also take similar steps to avoid employment-related claims by their own workforce. Specifically, ensure that transparent face masks and/or other auxiliary aids are available for use by managers and coworkers of employees who are deaf or hard-of-hearing. The responsibility to provide reasonable accommodations to employees with disabilities does not stop during a pandemic. In fact, many employers are seeing an increase in requests for workplace accommodations as a result of COVID-19. Employers may, if they have not already, receive more requests for accommodations related to wearing protective gear, changes in schedules and working from home more frequently.
In each circumstance, employers should document the employee’s request, engage in a cooperative dialogue with the employee and document their response (which is required in certain jurisdictions including New York City). A reasonable accommodation is one that allows the employee to perform his or her essential job functions with the accommodation and does not pose an undue hardship on the employer. Employers with questions regarding their responsibilities under the ADA are encouraged to seek the advice of counsel in order to avoid protracted and costly litigation. The lawsuit referred to herein is Bunn v. Nike, Inc. United States District Court, Northern District of California, Oakland Division (Case No. 20-cv-7403-YGR).
Jennifer M. Schmalz is a Partner at Ellenoff Grossman & Schole LLP in New York City in the in the Labor & Employment practice group. She counsels employers in all facets of labor, employment and employee benefits law, with broad experience in preventing and resolving workplace disputes, compliance with the variety of laws governing the workplace, and the labor and employment aspects of mergers and acquisitions and other corporate transactions. Ms. Schmalz has successfully litigated matters involving employment discrimination, Title III of the ADA, wrongful termination, violations of restrictive covenants, breach of contract and wage and hour violations. She works with clients in a wide variety of industries including hospitality, real estate, transportation, retail, financial services, health care, manufacturing, technology and not-for-profit corporations. Jennifer M. Schmalz can be reached at email@example.com or via phone at 212-370-1300.