By Craig Clough

Law360 (January 27, 2021, 7:59 PM EST) -- Nike has agreed to outfit its California workers with see-through masks as part of a proposed settlement to end class allegations that the shoe company's pandemic-era policy mandating masks prevents deaf and hard-of-hearing customers from reading employees' lips.

The unopposed motion filed Wednesday in California federal court outlines a deal where Nike will provide transparent masks to all California employees if they need to assist hearing-impaired customers, as well as clean pens and paper at its stores for such transactions. The company will also post signage outside its stores alerting customers about their right to access accommodations.

The customer who brought the suit, Cali Bunn, also asked the judge to grant attorney fees and costs of $85,000 and certify a settlement class likely to include thousands of deaf or hard-of-hearing customers who have entered Nike stores in the state since June 18 through the approval of the settlement. The deal would last as long as masks are required in stores to help stop the spread of COVID-19.

Bunn, a 22-year-old college student who is deaf, said in the motion for approval of the settlement that she "filed this lawsuit against defendant Nike, Inc. to address an important but overlooked pandemic-related problem that has affected millions of Californians who are deaf or hard of hearing."

She added, "Plaintiff agrees that face coverings are necessary to protect public health, but plaintiff alleges Nike has implemented its policy in a way that discriminates against people who are deaf or hard of hearing."

Bunn filed the putative class action in September in San Francisco County Superior Court while bringing claims for violations of Title III of the Americans with Disabilities Act, violations of California's Unruh Civil Rights Act and violations of the California Disabled Persons. Nike removed the lawsuit to federal court in October.

According to the suit, Bunn visited a Nike store in San Diego in June but was unable to communicate clearly with an employee due to the opaque mask he was wearing and the employee did not offer her any reasonable accommodations.

"Under federal and state law, plaintiff contends Nike has a duty to provide auxiliary aids or other reasonable accommodations to customers who are deaf or hard of hearing to ensure they can communicate effectively with Nike's employees," Bunn said in her Wednesday motion.

She added that under a 2018 Northern District of California ruling in Stathakos v. Columbia Sportwear Co. , when a class action settlement provides for injunctive relief only and allows for class members to bring claims for monetary relief, the court can skip preliminary approval of a settlement and hold a final approval hearing.

"I hope that this settlement causes other retailers to follow suit voluntarily," James F. Clapp of Clapp & Lauinger LLP, who represents Bunn and is also deaf himself, said in a statement. "Accommodating people with disabilities is not only legally required, but it shows a commitment to good customer service."

Counsel for Nike did not immediately respond to a request for comment. 

Bunn is represented by Michael Rubin and Eve E. Cervantez of Altshuler Berzon LLP, and James F. Clapp and Marita Murphy Lauinger of Clapp & Lauinger LLP.

Nike is represented by Austin Van Schwing, Julian Wolfe Kleinbrodt, Rachel S. Brass and Joseph Richard Rose of Gibson Dunn & Crutcher LLP.

The case is Cali Bunn et al. v. Nike Inc., case number 4:20-cv-07403, in the U.S. District Court for the Northern District of California.

--Editing by Jay Jackson Jr.

Correction: An earlier version of this story gave an incorrect last name for one of Nike's counsel. The error has been corrected.

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