Flail v. Bolger

On October 6, 1981, American newspapers, amid banner headlines blaring news of the assassination of Egyptian president Anwar el-Sadat, quietly reported a historic lawsuit settlement in a New Jersey district court that marked the first time a federal agency, in this case the United States Postal Service, publicly acknowledged discriminatory practices targeting deaf employees.

In May, 1979, Karl L. Flail, 38, of Wanaque, New Jersey, made application to work in the Paterson postal facility in northern New Jersey. He thought working as a postal carrier driving the delivery truck would be an opportunity for him to pursue a different career. He had more than 20 years of safe driving experience. That itself is not unusual.

When the postal facility management hired Flail, they told him of a postal service requirement that stated that mail carriers had to be able pass a most curious (and later to Flail’s attorneys) a most arbitrary test: mail carriers had to be able to discern conversation more than 15 feet away. For more than 30 years this—not driving record or job competencies—had been used to deny the deaf mail carrier positions. Thus, despite his stellar driving record, Flail was assigned to sort mail in the facility’s warehouse, sorting first class letters from magazines and third class promotional flyers. The work was dreary and was, he felt, largely like working as a compositor. Reluctant to raise problems, Flail initially followed union procedure and filed a job complaint with the management of the postal facility but was told again of the hearing requirement. Certain that the hearing requirement was unfair, he met in Northern Hackensack with a Deaf advocate who specialized in disability discrimination cases.

In the fall, 1980, Flail filed suit against the postal service, naming as defendant the Postmaster General William F. Bolger. Flail repeatedly told whatever press covered the suit that he did not see himself as an agitator nor did he see taking on the postal service as some kind of quixotic quest, noble largely because it would ultimately be futile. Rather, through his lawyers, Flail made clear that the deaf should be given the right to apply for the carrier positions, that the deaf should be guaranteed the right to be treated as individuals zwith individual strengths and individual talents rather than lumped together into some monolithic designation. True, some deaf had difficulties negotiating traffic and disliked the stress of driving—but many deaf drove and drove quite safely. Flail’s suit charged that the blanket policy requiring an entirely arbitrary (and non-medically sanctioned) hearing test to determine job assignments in the face of overwhelming evidence of the safety of deaf drivers as well as Flail’s own clean driving record unfairly targeted the deaf.

For more than 6 months, the New Jersey postal administration dragged its feet, realizing the potential for a public relations problem, given Flail’s likeability. At a time when the postal service was at an all-time low in public estimation due to steadily increasing postal rates, slow delivery times, and frequent work stoppages, the postal [Page 421]administration did not much relish a court battle with the very sympathetic Flail. Abruptly, just weeks before the suit was to go forward, the postal service quietly announced the settlement, that it would no longer restrict the deaf from driving delivery trucks—Flail himself would be moved to the carrier position and would be permitted to drive delivery trucks although the postal service maintained its restrictions against the deaf operating the larger five-ton trucks used to move letters and packages across states. In addition, Flail would be awarded back pay the equivalent of a postal carrier dating to the day he had been hired and assigned to sort mail. In announcing the settlement, postal officials de facto acknowledged that they had failed to live up to the government’s own equal opportunity regulations. Over the next three decades, major truck delivery companies would one by one come to drop their own prohibitions against deaf drivers (most recently UPS in 2006). In 2013, the United States Department of Transportation recognized the right of the deaf to apply to operate even the larger trucks.

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