Settlement Requires Retailers to Offer Clear Masks

In Legal Updates, News by ALDA News

The widespread use of face masks in public places has posed a special challenge to many of us with hearing loss. Most of us depend to a greater or lesser degree on being able to read lips and/or facial expressions. We understand the need for face masks, but we also understand the need to communicate even though we’ve lost that visual tool.

NikeOne theoretically attractive option are masks with transparent face pieces, but that option has two significant problems. First, the need for such masks arose so suddenly that supplies were initially very limited. Second, those of us who need the masks don’t need to be the people wearing them. We need the people who are trying to communicate with us to wear them.

A recent lawsuit filed in the San Francisco area addresses those issues. In Bunn v Nike Inc, a deaf woman sued Nike, claiming that she and other deaf and hard of hearing people were unable to shop at Nike’s retail stores because the Nike personnel were all masked. 

The legal theory is straightforward. Places of public accommodation like retail stores must provide effective communication to those of us with hearing loss. The methods can vary, and the business has a lot of flexibility to select how that is to be done, but the objective must be met. So the argument was that if Nike took away one method of providing effective communication, namely, the visual cues, it had to provide something else.

The case was settled through a consent decree, in which the parties agree to the terms, then the court adopts that agreement as an enforceable order. The decree requires Nike to obtain enough clear masks for all of its employees, then to provide a method by which a customer who needs to speech-read can ask that the masks be used for his or her visit. The clear-mask requirement will apply only so long as Nike is requiring all its retail employees to wear face masks.

This is potentially a really big deal that we would like to see spread to other businesses, most especially to health-care providers. The practical question, though, is whether the general use of masks is going to last long enough to make wide implementation in big organizations feasible. But the case shows how the flexible requirements of the Americans with Disabilities Act can be applied to new situations. 

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