Fashion Valley Nike Store, Ground Zero of Class Action for Deaf, Toes Line on Deal

Customers wait to enter the Fashion Valley Nike Store, whose employees are now equipped with transparent masks. Photo by Chris Stone

Nike customers chilled their heels on Saturday as they lined up outside the brand’s flagship store at the Fashion Valley mall. Most ignored a small sign posted at the window.

It was one of 10 mini-posters primarily related to COVID. But this was aimed at a particular clientele.

Next to a blue ear graphic, it read: “If you prefer to be assisted by an employee who wears a transparent face mask, or if you require another accommodation, please ask an employee for assistance .”

Carlsbad attorney James Clapp was happy to hear the sign had been posted. This meant that the settlement of his lawsuit with Nike had taken effect.

“The ear is the international sign for hearing access,” Clapp said. “People like me who are deaf look for this symbol if we need housing, and I personally think it’s prominent enough for a deaf person to notice instantly.”

Settlement documents involving the Nike and Cali Bunn class action lawsuit. (PDF)

Clapp was lead counsel in a major class action lawsuit against the sportswear and footwear giant brought on behalf of Cali Bunn, 22, a former Cathedral Catholic volleyball star with profound hearing loss.

On Jan. 28, Nike attorneys told a federal court in San Francisco that they had agreed to a settlement on Jan. 8 that would pay Bunn’s attorneys $85,000, just under half of the costs they incurred. .

Nike would pay Bunn $5,000 as a “reward for service” because of the 15-20 hours she spent on litigation, “the reputational and financial risk she took, and the substantial benefits her efforts have yielded.” ultimately conferred on deaf and hard of hearing Nike customers in California.”

In July, Bunn, a student at Tulane University, went shopping for shoes at the Nike store in Fashion Valley. But with her salesperson wearing a COVID-mandated mask, she was unable to read lips – an “upsetting experience” that caused “angst”.

Last September, she sued Nike for accommodating the hearing impaired, citing state law and the US Federal Persons with Disabilities Act.

After two months of “cordial” negotiations, Nike and Bunn reached an agreement with statewide effect – and possible national consequence.

Every Nike retail store in California must provide clear-window masks for employees and clean pens and paper to “facilitate exchanging notes with customers who are deaf or hard of hearing and indicate that they prefer to communicate in writing.”

Nike has also agreed to post notices near the entrances to its 38 California stores advising customers who are deaf or hard of hearing that they can seek assistance.

Clapp said he and a co-counsel wore, tested and approved the masks.

“They’re comfortable and they get the job done by letting you see the wearer’s mouth and facial expressions,” he said.

Nike did not respond to questions, including whether its California policy would be adopted nationally. A Fashion Valley store manager wouldn’t allow photos of the new masks, directing questions to Nike instead.

But Clapp said in a statement, “My client and I agree that face masks are necessary to protect public health, but they also create communication issues for the millions of people who are deaf or hard of hearing in the United States.

“We appreciate Nike’s proactive approach to this important but overlooked issue. I hope this settlement will inspire other retailers to voluntarily follow suit. Disability accommodation is not only legally required, but it shows a commitment to good customer service. »

A mask maker agreed.

“Under Title III of the Americans with Disabilities Act … entities such as businesses and nonprofits are required to provide effective accommodations upon request, including attendant aids,” said Allysa Dittmar, president and co-founder of ClearMask, which makes a transparent face covering. .

She didn’t say if Nike was a customer, but The Times of San Diego learned that Nike was buying clear masks from one of its regular manufacturers outside the United States.

“These are reusable/washable cloth masks, not disposable masks like the one made by ClearMask,” said a source who did not want to be identified.

Prior to settlement talks, Bunn’s attorneys visited seven Nike retail stores to confirm that its policies were consistent across the state. Now both sides are awaiting formal approval from a federal judge.

At 2 p.m. on April 20, Judge Yvonne Gonzalez Rogers is expected to sign the settlement in her Oakland courtroom.

It takes so long because the agreement has to be distributed to state attorneys general across the country.

“Nike served the required notices on January 14, 2021 and will file evidence of compliance with this notice requirement. As such, the final approval order cannot be entered until April 13, 2021, to comply with the CAFA notification requirement,” Clapp told the court.

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