US retailers may be hit again amid COVID-19


The impact of COVID-19 to the retail industry has been dire . . . temporary store closures, limitations on the number of consumers that can be in the store at any one time, disrupted supply chains, loss of revenue, even permanent store closures and bankruptcies.

Retailers now have another concern.

The US Centers for Disease Control and Prevention’s (CDC) recommended safety protocol that retailers have implemented to reduce the spread of the virus includes requirements that employees and customers wear masks and that retailers provide hand sanitizer, install plastic shields between cashiers and customers, in some cases wear gloves, and a myriad of other steps depending on the nature of the retailer and the configuration of the location. The implementation of certain safety measures has exposed retailers to yet another category of class action litigation, in this case arising out of Title III of the Americans with Disabilities Act and the California Unruh Civil Rights Act. A putative class action lawsuit was filed in San Francisco Superior Court last September claiming that retailer Nike violated the civil rights of hearing impaired customers by requiring its employees to wear opaque face masks that made it difficult or impossible for these customers to hear the employees or read their lips. Plaintiff asserts that the Nike employee failed to offer the defendant a reasonable accommodation by donning a transparent face mask or offering to communicate with the plaintiff in writing.

On January 28, 2021, an unopposed motion was filed in a California federal court that includes settlement terms whereby Nike has agreed to provide transparent masks to all California employees if they need to assist hearing-impaired customers. Nike stores will also have available sanitized pens and paper to facilitate transactions with hearing impaired customers. The motion also includes a request for class certification and attorney fees and costs of $85,000. This settlement will no doubt spawn numerous new class action lawsuits against retailers whose employees are not wearing transparent masks or fail to offer to communicate with hearing impaired customers in writing. Moreover, the litigation will not be limited to California because the ADA applies to all states, in addition to individual state laws regarding the rights of disabled persons that will also be implicated.

Retailers have for many years been the target of class action litigation across the US, but particularly in California where retailers have faced class action claims arising out of FACTA, Song-Beverly, fictitious pricing programs, and the ADA and Unruh Act related to retail websites that do not meet recommended guidelines for the accommodation of visually impaired users. With the announcement of this settlement between Nike and Cali Bunn, the hearing-impaired plaintiff, California and US retailers can expect an onslaught of new disability-based class action lawsuits based on state and federal law. Therefore, all retailers, wherever located, should take heed and provide their employees with appropriate training for dealing with hearing impaired and other disabled customers, including proactively providing transparent masks, and sanitized pens and paper in their retail stores to avoid becoming the next class action defendant.

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