Karla Gilbride

At 10:01 on the morning of March 21, 2022, Karla Gilbride stood at the lectern of the Supreme Court of the United States with a list of cases and quotations in Braille under her fingers. The lectern’s warning clock works by colored lights, yellow and then red, so at her request the Court had arranged an audible signal: “They had a court employee sit at a table and physically ring a bell.” Robyn Morgan, the former Taco Bell worker whose overtime case she was arguing, was listening to the audio feed; the building was still closed to the public under pandemic rules, and the Court had said no when Gilbride asked whether her client could attend. Gilbride, totally blind since the age of two, was making her first Supreme Court argument, and she became the first blind attorney to argue before the Court.

The company on the other side, Sundance, Inc., owns more than 150 Taco Bell franchises. It had answered Morgan’s suit with fourteen affirmative defenses, none of them arbitration, had moved to dismiss, had sat through a mediation, and then, nearly eight months in, had demanded that her claims go to an arbitrator one worker at a time. The Eighth Circuit had let it, under a rule that required Morgan to prove the delay had prejudiced her before the company could be held to have waived its clause. Gilbride’s position was that the Federal Arbitration Act places arbitration agreements on equal footing with other contracts—no better and no worse—and gives courts no authority to invent special procedural protections for them. She had spent nearly a decade at Public Justice arguing that an arbitration clause binds only people who actually agreed to it, and only when the company invoking it had not already chosen the courthouse.

Her appellate work spans that unanimous decision and favorable arbitration and disability-access rulings in five federal circuits and Maryland’s highest court, and it has been followed by a term as general counsel of the Equal Employment Opportunity Commission and a suit over three Department of Homeland Security oversight offices. The matters are civil-rights, disability-access, workers’ rights, arbitration, administrative-law and constitutional cases, and the question that recurs in them is whether a procedural rule applies to workers, consumers and people with disabilities the way it applies to everyone else.

From Osceola, Iowa, to the Eighth Circuit

Morgan worked hourly shifts for about three months in 2015 at the Taco Bell in Osceola, Iowa, one of Sundance’s restaurants, and when she applied she signed an agreement to arbitrate any employment dispute. In September 2018 she filed a nationwide collective action under the Fair Labor Standards Act in the Southern District of Iowa. Her complaint alleged that employees were directed to clock out and keep working, and that recorded hours were shifted between weeks so that no week ever showed more than forty and overtime would never appear on a paycheck. Paige Fiedler of the Fiedler Law Firm, Beth M. Rivers of Pitt McGehee Palmer & Rivers, and Charles R. Ash IV and Jason J. Thompson of Sommers Schwartz were co-counsel with Public Justice.

Sundance did not ask for arbitration. It moved to dismiss or transfer the case in favor of Wood v. Sundance, a collective action that other Taco Bell employees had filed in the Eastern District of Michigan in 2016, arguing under the first-filed rule that Morgan’s case should yield to it, and the district court denied the motion. Sundance then answered with fourteen affirmative defenses, none of which mentioned the arbitration agreement. It went into a joint mediation with the Wood plaintiffs; the Michigan case settled, and Morgan’s did not. In May 2019, nearly eight months after she filed, Sundance moved to stay the litigation and compel individual arbitration under Sections 3 and 4 of the Federal Arbitration Act. Its explanation for the timing was that it had asserted the right as soon as the Supreme Court’s decision in Lamps Plus confirmed that the arbitration would proceed one employee at a time rather than as a class.

The district court found that Sundance had waived its right to arbitrate: Morgan had been put to the expense of defending the motion to dismiss and of a class-wide mediation in place of an individual arbitration. On March 30, 2021, a divided Eighth Circuit panel reversed. Judge Grasz, joined by Judge Gruender, applied the circuit’s rule that a party waives arbitration only if it knew of the right, acted inconsistently with it, and prejudiced the other side by doing so. Sundance had known of the right and had acted inconsistently with it, the majority held, but Morgan had not been prejudiced: no discovery had taken place, the parties had spent little time on the merits, and most of her work had gone into the first-to-file question. Judge Colloton dissented. “Sundance also led Morgan to waste time and money engaging in a fruitless mediation,” he wrote, “based on an inaccurate premise that the case would be litigated in federal court,” and he noted that “some circuits allow a finding of waiver of arbitration without a showing of prejudice.” Nine circuits, the Eighth among them, had built a prejudice requirement onto waiver out of the federal policy favoring arbitration; two had refused to.

Five Appeals Before the Petition

By the time the petition came, Gilbride had spent nearly a decade at Public Justice, where she co-directed the Access to Justice Project, and Morgan was the summit of a decade of appellate work testing when arbitration clauses actually bind the people asked to honor them. “I fortunately had worked on the sorts of issues that that case presented in several other cases,” she said later. The cases had come from a credit-card debt, a bed, a phone, an insurer’s personnel policies and a store loyalty program.

Clifford Cain, Jr. opened a Citibank credit-card account in 2003 and stopped paying in 2007. Citibank sold the account to Midland Funding in 2008, and on March 30, 2009, Midland sued him in the District Court of Maryland in Baltimore City and took a default judgment for $4,520.54. Maryland law required a collection agency to be licensed before it sued; Midland did not obtain its license for almost another year, and across roughly two and a half years without one it pursued thousands of Marylanders’ purchased debts to money judgments, wage garnishments and awards of attorneys’ fees. In June 2013 the Court of Special Appeals held in Finch v. LVNV Funding that a judgment entered for an unlicensed debt collector is void as a matter of law, and on July 30, 2013, Cain filed a class action in the Circuit Court for Baltimore City to recover the judgments and fee awards. Midland reached back to the arbitration clause in the original Citibank agreement, which survived the sale of the account, and the circuit court and the Court of Special Appeals sent him to arbitration. Gilbride was Public Justice’s responsible attorney on the appeal, with Paul Bland, Scott Borison of the Legg Law Firm and Phillip Robinson of the Consumer Law Center. On March 24, 2017, Maryland’s highest court reversed, five to two, in an opinion by Judge Adkins: Midland had waived arbitration by choosing to litigate the related collection action. “Put simply, if Midland had not pursued its 2009 collection action, Cain’s current claims would not exist,” the court wrote, and “Midland could choose whether to litigate or arbitrate its collection action against Cain—and it chose to litigate.” Under Maryland law, “Cain does not have to demonstrate that he will suffer prejudice if the arbitration clause is enforced.” The court declined to import the federal courts’ prejudice requirement into a question that state law governed.

Candy Ray never signed the lease-to-own agreement for the bed her husband bought from Progressive Leasing in September 2015, though he listed her cell phone as the number on the account. After a billing dispute she spoke with a company representative in October 2015, and the calls to collect his debt began. Ray revoked any consent in January and February 2016 and said she would not pay another person’s debt. The calls continued. From March through October 2016, Progressive Leasing placed hundreds of robocalls to her phone from more than a dozen numbers, many of them more than once a day and some of them three, four or five times in a single day, leaving her uncertain when it was safe to answer her own phone. She sued under the Telephone Consumer Protection Act and the Florida Consumer Collection Practices Act, and the company moved to compel arbitration under the lease her husband had signed. The district court held that Ray, a nonsignatory, was not bound, relying on the Florida Supreme Court’s decision in Mendez v. Hampton Court Nursing Center. Gilbride and Lucas Rhoads of Public Justice, with James Giardina and Kimberly Wochholz of the Consumer Rights Law Group in Tampa and Richard Peck of Elkin-Peck, represented her in the Eleventh Circuit, and on July 26, 2018, a panel of Judges William Pryor, Jordan and Anderson affirmed. Progressive had argued only federal law in the district court, had not replied when Ray argued that Florida law governed, and had never addressed Mendez. “Progressive Leasing has therefore abandoned challenging the primary basis on which the district court ruled,” the court wrote; the company could not overcome the Florida-law basis for the ruling, and Ray kept her claims in court.

Hoai Dang bought a Samsung Galaxy S3. Inside the box was a warranty booklet, and inside the booklet, among the product and safety information, was an arbitration provision written in a question-and-answer format that never called itself an agreement or a contract. Nothing on the packaging or the receipt told a buyer that accepting the phone created a separate contract governing nonwarranty disputes. Dang filed a consumer class action for people who had bought the S3 before learning that many of its technologies allegedly infringed Apple patents, allegations that had already produced a multi-million-dollar jury verdict against Samsung, and he alleged patent-related misrepresentations and a loss in the phone’s value. Samsung invoked the booklet and his failure to opt out within thirty days, and the district court compelled arbitration. Gilbride was Public Justice’s responsible attorney, with Paul Bland, Clayton Halunen and Melissa Wolchansky of Halunen Law, and Michael Reese of Reese LLP. On January 19, 2017, the Ninth Circuit reversed the arbitration order, the same day it decided the published companion case, Norcia v. Samsung, in which Daniel Norcia had bought a Galaxy S4 at a Verizon store in San Francisco on May 23, 2013, signed a Verizon customer agreement that never mentioned Samsung, taken the phone, charger and headphones, and declined the box with its 101-page “Product Safety & Warranty Information” brochure. Judge Ikuta, writing for a panel with Chief Judge Thomas and Judge Bea, held under California law that “silence or inaction does not constitute acceptance of an offer,” that Samsung had shown no exception to that rule, and that a reasonable buyer would not understand a warranty brochure to impose a freestanding arbitration obligation covering nonwarranty claims; a buyer “is not bound by inconspicuous contractual provisions of which he was unaware.” The booklet did not put a reasonable buyer on notice, silence could not supply assent, and if the rule should change, the court said, the change belonged to the California Legislature.

Dana Fedor worked as a care coordinator for UnitedHealthcare from November 2013 to November 2016. In 2017 she sued in the District of New Mexico under the Fair Labor Standards Act and New Mexico wage law, and eight other former employees joined her. The company moved to compel arbitration under its employee arbitration policy, but the nine plaintiffs had started in different years and had received different versions of it. The 2006, 2012 and 2015 versions each let UnitedHealthcare change or end the policy at will, and the district court found all three illusory. The 2016 version dropped that clause and added a delegation clause sending disputes over “interpretation, enforceability, applicability, unconscionability, arbitrability or formation” to the arbitrator, and the court compelled arbitration under it without asking whether anyone had agreed to it, reasoning under Rent-A-Center that Fedor had attacked the contract as a whole rather than the delegation clause. None of the plaintiffs had seen or signed the 2016 policy. Gilbride argued the appeal, with Stephanie Glaberson, Jack Siegel, David Seligman and J. Derek Braziel on the briefs, and on September 16, 2020, the Tenth Circuit vacated the arbitration order in an opinion by Judge Eid, joined by Judges Bacharach and McHugh. A court must decide whether an arbitration agreement was formed before it enforces any delegation clause inside it: “a delegation clause cannot be severed from an agreement that does not exist.” UnitedHealthcare’s fallback arguments, that the earlier policies were valid after all and that employees had agreed by accepting offer letters, would have enlarged its rights and required a cross-appeal it had not filed. The wage action went back to the trial court to decide whether Fedor and the company had ever formed the 2016 agreement, and the employees’ compensation claims went with it.

The National Federation of the Blind and four of its members, Mika Pyyhkala, Lisa Irving, Jeanine Kay Lineback and Arthur Jacobs, sued the Container Store in September 2015 over the point-of-sale devices in its roughly seventy stores. The devices used a flat touch screen without a tactile keypad, so blind customers could not independently enter the personal identification numbers for their debit cards or enroll in the store’s loyalty program; they had to speak their PINs, phone numbers and email addresses aloud to a sighted clerk. The company answered with the arbitration provision in its loyalty-program terms. In-store enrollment ran through the same touch screen, the terms were available only on request, and no clerk had told Pyyhkala, Irving or Jacobs that an arbitration agreement existed; Lineback had enrolled online from home by checking a box beside a hyperlinked “I agree.” Gilbride joined the team opposing arbitration, with Jeremy Weltman, Jana Eisinger, Dani Zylberberg of Public Justice, Scott LaBarre and Timothy Elder, and Judge Gorton in the District of Massachusetts denied the company’s motion. On September 14, 2018, the First Circuit affirmed in an opinion by Judge Thompson, joined by Judge Selya and retired Justice David Souter, sitting by designation. The Container Store “failed to meet its burden of establishing that an agreement to arbitrate was ever consummated” with the in-store plaintiffs; there was “zero hint” that terms and conditions, let alone an arbitration agreement, applied to their enrollment. As to Lineback, the company had kept the unilateral right to alter the terms of the program at any time, including retroactively. “Pursuant to Texas law, this is a text-book definition of illusory.” The company had not shown that several customers knew arbitration terms accompanied enrollment, the governing promise was illusory, and the blind customers’ claims about the keypads stayed in court. A rewards enrollment could not silently strip them of their civil-rights claims.

In each of the five, the court asked the ordinary contract questions first: whether the company had waived the clause by litigating, whether the person had notice of it, whether assent had been given, whether any agreement had been formed at all. Only after those answers could anyone be compelled to arbitrate.

If We Decide to Go Forward

The lawyers who had handled Morgan’s case in the district court came to Public Justice after the Eighth Circuit ruled and asked Gilbride to take it to the Supreme Court. Her boss told her, “If we decide to go forward in the Supreme Court, I think you should handle the case.” She has described the thoughts that came with the offer: “what if you’re not smart enough,” and the fear that if the argument went badly, people would think, “Well, after all, what do you expect? She’s blind.” The answer she gave herself was the one she had been giving since childhood: “Oh, yeah? I’ll show you!” The wish to fight the injustice in Morgan’s case, she has said, outweighed the doubts.

The petition for certiorari was filed on August 27, 2021, with Gilbride as counsel of record, and presented the split over whether prejudice is required for waiver. Sundance opposed on October 1; the Court granted review on November 15, 2021. Sundance then retained Paul Clement. “At that time he had argued over one hundred cases before the US Supreme Court,” Gilbride said. Morgan’s merits brief went in on December 30, arguing that the Act’s streamlined procedures presuppose parties who promptly assert their arbitration rights, and amicus briefs followed in January from the American Association for Justice, the National Academy of Arbitrators, a group of law professors, a group of states led by Minnesota and Maryland, and Public Citizen. Sundance’s brief, filed February 4, 2022, called Morgan’s position an “artificial, made-to-defeat-arbitration rule” of the kind the Act was written to counter; the Washington Legal Foundation, the Restaurant Law Center and the U.S. Chamber of Commerce filed in its support. Morgan’s reply was filed March 11.

She prepared the way she had learned to work. She read the prior cases with JAWS, a screen reader, and listened to archived arguments, Clement’s especially, until she knew each justice’s voice and habits. “With my Supreme Court argument, I think I did five moots, and I recorded several of them, and I had another colleague sit and take notes on all of the questions and my answers so that I could study them in detail and write down better answers to try to give the next time.” For the lectern she prepared a Braille list of key cases and quotations and two or three pages of Braille notes. She had considered a refreshable Braille display and decided against it in case it failed; instead she “brushed up on my slate and stylus skills” so that she could take notes by hand during Clement’s argument, and she told the Court in advance what she would be carrying so that security would not stop her. She asked about the lights on the lectern, and the Court arranged the bell. She also asked whether Morgan could attend: “and they said no; no members of the public. And I thought she’s really not a member of the public. She has a right to be there, but that was what they said.”

A Bell for the Yellow Light

The day call for March 21, 2022, listed one hour for No. 21-328, Robyn Morgan v. Sundance, Inc., and two names: Karla A. Gilbride, Washington, D.C., and Paul D. Clement, Washington, D.C. Justice Thomas was absent, admitted to the hospital days earlier with flu-like symptoms. Gilbride began: “Section 2 of the Federal Arbitration Act requires that an agreement to arbitrate be enforced” unless “a generally applicable contract defense renders it unenforceable.” “But the Eighth Circuit didn’t apply a generally applicable contract defense here.” Chief Justice Roberts asked what happens when a state’s own waiver rules treat arbitration differently; such states, she answered, “are not complying with the equal treatment principle that is at the core of the Federal Arbitration Act.” He told her that the whole point of the Act was to expedite disputes and that she was “creating a whole new battleground before you even get to arbitration.” Justice Alito asked whether every court of appeals had been applying federal common law to the question and said, “You have a cogent argument, but it would represent a significant change.” Justice Sotomayor asked how the Court gets from federal law to state law and said she was troubled that the circuits defined prejudice in different ways; on the statute, Gilbride answered that “nothing in the text of Section 3 or in the purposes and structure of the FAA connote a prejudice requirement.” Justice Barrett pressed on the agreement’s non-waiver clause: “Why doesn’t that do more work if the right place to look here is substantive contract law?” and “What’s the point of including them then?” “Non-waiver provisions are routinely waived by subsequent conduct,” Gilbride told her.

Justice Breyer said he used to have nightmares about teaching a class in which a student asked about material he did not know, and he asked her for a reading of the contract concepts that would keep him out of “this nightmare.” “You have a very logical framework,” he told her, and he worried that her course would delay justice. “What you should do, Justice Breyer, is remand for this to be decided under state law,” she said; “courts deal with fact-intensive, complicated questions all the time.” Her answer on which law governs turned on what kind of default was at issue: a contractual default would be governed by state law, a statutory one by federal law, and enforceability under Section 2 by state law under the Act’s substantive mandate. When Justice Gorsuch floated a federal civil-procedure approach with no prejudice requirement, she held to her state-law position; when Justice Kavanaugh described the D.C. Circuit’s practice of presuming forfeiture if arbitration is not raised in the first responsive pleading, she called it “a good model for this court to look to.” Justice Sotomayor asked why Sundance’s delay was not a waiver: “Tell me why that isn’t an intentional relinquishment of a known right.” The company, she said, had taken “a calculated risk by staying in litigation” to see whether class arbitration would be approved.

Clement defended the prejudice requirement. “Nothing in the FAA or state law supports Petitioner’s proposed rule,” he argued, and “under all relevant state law doctrines, one has to show prejudice before a contractual right is lost.” “I think what the parties bargained for here was not just arbitration but bilateral arbitration,” he said; Sundance had been right not to move to compel earlier, because doing so could have opened the door to nationwide collective arbitration, which nearly every defendant regards as “the worst of both worlds.” When Justice Kagan raised the prospect of defendants getting two bites at the apple, he answered that the “prejudice inquiry is not so clear” as to give them a free pass. Kagan framed the dispute as whether the arbitration agreement “is valid and enforceable,” and “That’s a question that the FAA delegates to state law.”

“The day of the argument came, and it really went by in a blur.” “It was actually surprisingly enjoyable to be engaging back and forth with the justices.” Art Lien, the Court’s longtime sketch artist, drew her at the lectern with her hands on the Braille paper and an arrow to her fingers labeled “Braille.” On the audio there is a moment when Justice Breyer can be heard saying to someone beside him, “I think I changed my mind.” Gilbride did not hear it in the room; a friend pointed it out afterward, and she does not say what prompted it. What she remembers thinking when it was over was, “Did I just really do that?”

Like All Others

On May 23, 2022, the Court ruled for Morgan unanimously, in an opinion by Justice Kagan. The Eighth Circuit’s rule was “a bespoke rule of waiver for arbitration.” Outside arbitration, waiver turns on the conduct of the party holding the right, and harm to the other side is no part of it. The federal policy favoring arbitration, in the words of Prima Paint, is a policy to make “arbitration agreements as enforceable as other contracts, but not more so.” “The federal policy is about treating arbitration contracts like all others, not about fostering arbitration.” “But a court may not devise novel rules to favor arbitration over litigation.” Section 6 of the Act requires that applications to stay a case or compel arbitration be made and heard in the manner provided by law for motions, which means the ordinary federal rules of procedure, timeliness rules included; because ordinary waiver carries no prejudice requirement, Section 6 forbids one for arbitration. “Accordingly, a court must hold a party to its arbitration contract just as the court would to any other kind.” “Our sole holding today is that it may not make up a new procedural rule based on the FAA’s ‘policy favoring arbitration.’”

The Court vacated the Eighth Circuit’s judgment and returned the case for the ordinary waiver analysis: whether Sundance knowingly relinquished its right to arbitrate by acting inconsistently with it, with the court of appeals free to decide instead that a different framework, such as forfeiture, fit the question better. The holding was precise and far-reaching at once. The split in which nine circuits had demanded prejudice and two had rejected it was resolved against the nine; federal courts may not fashion arbitration-preferring procedural rules out of a general policy favoring arbitration; and a defendant that chooses litigation first is judged by the same relinquishment rules that govern every other contractual right. For workers and consumers facing the same maneuver, the playing field was level again. Judgment issued on June 24, 2022.

Gilbride’s statement that day was about her client. “All Robyn Morgan wants in this case is to be paid fairly by her former employer and to have her legal arguments treated fairly by the courts, without a thumb on the scale because those arguments happen to involve arbitration.” The Court had announced “in no uncertain terms that the Federal Arbitration Act does not support judge-made procedural rules favoring arbitration over litigation or favoring arbitration agreements over other types of contracts,” and she hoped the decision would tell every corporation that writes arbitration provisions into its contracts with workers and consumers that those provisions will be treated like any other term: “no worse, but also no better.”

Courts have applied Morgan since without the prejudice inquiry. The Third Circuit found that Samsung had waived arbitration in White v. Samsung Electronics America by seeking a merits dismissal and agreeing to discovery stays before trying to arbitrate; the Ninth Circuit found waiver in Gile v. Dolgen California from extended silence and delay, and in Hill v. Xerox Business Services from extensive discovery and a partial summary-judgment motion; the Eleventh Circuit found waiver in Warrington v. Rocky Patel Premium Cigars after the parties had substantially invoked the litigation machinery for nearly a year; and the Eighth Circuit itself found waiver in Breadeaux’s Pisa v. Beckman Brothers, where a franchisor had asked a court to decide arbitrable issues and then declined to arbitrate the rest. Defendants that pleaded arbitration promptly and never sought a merits ruling, as in the Ninth Circuit’s Armstrong v. Michaels Stores and the Second Circuit’s Brown v. Peregrine Enterprises, kept their clauses. After Morgan, the question is what the defendant did.

Sentinel and a Screen Reader

Jahinnslerth Orozco has been an intelligence analyst at the FBI since 2012. He is blind and does his work with screen access software that reads electronic text aloud. Sentinel, the Bureau’s web-based case management system for reviewing files and processing incoming leads, does not work with that software, and neither does the Enterprise Process Automation System through which analysts file travel requests and expense reimbursements, so Orozco could not perform core parts of his job independently even though accessible alternatives were available. In April 2019 he filed an administrative complaint with the Justice Department, copying the FBI’s equal employment office and its chief information officer, whom he had already contacted twice; the Bureau handled it as an employment-discrimination complaint, dismissed it and referred him back to the chief information officer. He sued in the District of Columbia under Section 508 of the Rehabilitation Act, 29 U.S.C. § 794d, which requires federal agencies to procure, develop, maintain and use electronic and information technology that people with disabilities can use, seeking an injunction and the attorneys’ fees the statute authorizes.

The district court dismissed the case on the theory that Section 508 gave him no enforceable right to the access he sought. Its reasoning ran through a chain of cross-references, from Section 508 to 29 U.S.C. § 794a and on to Title VI of the Civil Rights Act, which reaches only recipients of federal financial assistance; reading that limit back into Section 508, the court concluded that a federal employee could not sue a federal agency. Every district court to decide the question had reached the same answer. Gilbride argued the appeal on October 18, 2022, with Alexandra Brodsky of Public Justice, Tim Elder and Kris Nelson of TRE Legal Practice, and Albert Elia of the Civil Rights Education and Enforcement Center, and with the National Federation of the Blind’s support. The government argued that Section 794d(f)(3) imported Section 794a(a)(2)’s limits on who may sue, and that any ambiguity had to be construed against a waiver of sovereign immunity. On February 17, 2023, the D.C. Circuit reversed in an opinion by Judge Millett, joined by Judges Walker and Childs. Relying on Consolidated Rail Corp. v. Darrone, the court held that incorporating a statute’s remedies does not incorporate its limits on plaintiffs; Section 508 names its own plaintiffs, any individual with a disability who files a complaint about the accessibility of an agency’s technology, and “an incorporation of remedies, procedures, and rights means what it says.” Reading a statute that expressly authorizes civil actions to authorize none would make it meaningless, and “Congress’s purpose was to spur the innovative use of accessible technology by federal agencies.” The sovereign-immunity canon did not apply because the text was clear and the Administrative Procedure Act already waives immunity for non-monetary relief. “The statute affords federal employees like Orozco their day in court.” It was the first court of appeals decision on whether Section 508 can be enforced by private suit, and it restored to federal workers with disabilities the enforcement mechanism the statute had promised them. Orozco’s case went back to the district court for consideration of the accessible software he had asked for, and other federal employees, and people with disabilities who need information from federal websites, may now sue for injunctive relief over inaccessible federal technology. “This ruling is a major victory for Joe Orozco and for all blind federal employees,” Mark Riccobono, the Federation’s president, said.

A Jury’s $36 Million and a Statutory Cap

President Biden nominated Gilbride as general counsel of the Equal Employment Opportunity Commission on January 3, 2023. The Senate confirmed her on October 17, 2023, for a four-year term, and Chair Charlotte Burrows swore her in on October 23. She is blind, and she was the first person with a known disability appointed to the position. The general counsel directs, coordinates and supervises the agency’s entire federal litigation program; in her own description the job is to “decide what lawsuits to bring, and set the legal priorities and strategy for the litigation program.” “I am thrilled to join the EEOC, whose mission resonates deeply with my belief in removing barriers,” she said at her swearing-in. In fiscal year 2024 the program filed 111 merits suits, thirteen of them systemic, and resolved 132, with a settlement or favorable judgment in 128 of them; it recovered $40,399,978 for 4,304 people, and sixteen systemic resolutions brought more than $23.9 million for about 4,074 of them.

Victor Robinson is Deaf. In 2015 he obtained the Federal Motor Carrier Safety Administration’s hearing exemption, the medical variance that makes a Deaf driver physically qualified under federal law to drive a commercial vehicle, and he completed training at Roadmaster, a driving school owned by Werner Enterprises, with an interpreter communicating with him from the back seat of the truck. Before he finished there he applied to Werner, one of the five largest truckload carriers in the country, and he went on to earn his commercial driver’s license. Because he had less than six months of commercial driving experience, Werner’s policy required him to complete its placement driver program, a multi-week stint on the road with a trainer, and the company said that program required verbal communication. Recruiting manager Erin Marsh pre-approved his application. Then Jamie Hamm, Werner’s vice president of safety and compliance, ended a call with him by saying, “No, I’m sorry, we can’t hire you because of your deafness.” That was 2016. Hamm had no documentation of having researched accommodations, and an investigator testified that she told him she had not done that research before the call. In a sworn interrogatory answer, Werner stated that a Deaf student driver could not safely complete the over-the-road training. The EEOC sued Werner and its driver-employing subsidiary, Drivers Management, LLC, under the Americans with Disabilities Act in the District of Nebraska.

Before trial, the district court granted the EEOC summary judgment on Werner’s direct-threat and undue-hardship defenses: the company had offered no evidence of financial burden, only a conclusory claim about training, and Hamm had made general inquiries without the individualized assessment the law requires. The court admitted recruiters’ comments and evidence of other trucking companies’ policies, and it directed a verdict for the EEOC on causation, because every reason Werner gave described Robinson’s deafness. The jury heard that Marsh, shown an article about a Deaf man who had gotten a truck-driving job, had responded, “This scares me to death.” Another recruiter had written of an applicant, “[I]’m on hold with a deaf guy.. wtf”. On September 1, 2023, the eight-person jury in Omaha found that the companies had failed to hire Robinson because he is Deaf and had failed to provide a reasonable accommodation, and it awarded $75,000 in compensatory damages and $36 million in punitive damages. Federal law caps damages in such cases. The judgment Senior Judge John M. Gerrard entered on January 11, 2024, which also found that Werner had intentionally discriminated against Robinson, reduced the award to the $300,000 statutory maximum, with a separate award of $35,682 in lost wages and prejudgment interest and injunctive relief requiring policy, training and monitoring changes: for three years the companies must keep records of Deaf applicants who hold the federal exemption and report to the EEOC every six months on Deaf truck-driver applicants and new hires.

Gilbride’s statement on the judgment went to the cap. “As the court noted in its order, federal law caps punitive damages at $300,000,” she said, “not even one percent of the jury’s intended award.” “These caps, which were set by Congress decades ago, take away juries’ power to deter large employers from engaging in intentional discrimination against workers. Juries who have heard the evidence should be able to punish employers who knowingly or recklessly break the nation’s workplace civil rights laws without constraints from outdated caps on damages.” Werner appealed everything: the directed verdict, the summary judgment on its defenses, the evidentiary rulings, the denial of judgment as a matter of law, the punitive award, the injunction and the interest. On July 10, 2025, the Eighth Circuit affirmed in full in an opinion by Judge Shepherd, joined by Chief Judge Colloton and Judge Smith. Hamm’s statement and the interrogatory answer were direct evidence of discrimination, and Werner’s stated reasons were “just describing his deafness with more words, not identifying a ‘consequence’ of it.” Its safety assessment of Robinson “wasn’t bespoke—it was off-the-rack.” The essential function of the job, the court held, is safe driving, and Robinson’s exemption carried the force of law. Gilbride supervised the EEOC’s national litigation program during the judgment and the appeal.

In the Northern District of Illinois, the EEOC alleged that at a DHL facility in Illinois, Black employees were assigned the more difficult and dangerous routes, in predominantly Black neighborhoods with higher crime rates, while white employees received routes in predominantly white areas; that Black drivers witnessed crimes on their routes and were sometimes the victims of them; that Black employees were given far heavier dock work, moving large packages while white coworkers sorted letters; and that the company segregated its Black and white workforce. The route system affected workload, safety and opportunity. On April 25, 2024, a consent decree required DHL to pay $8.7 million to the eighty-three Black employees who had joined the suit, twenty of them represented by their own counsel, and placed the company under four years of monitoring by Leslie Silverman, a former EEOC commissioner whom the court appointed with the parties’ agreement, with revised assignment procedures, training for the workforce on the laws against race discrimination, and periodic reports to Silverman and the agency on work assignments and discrimination complaints; the decree bars race-based segregation and retaliation, and Silverman reviews whether assignments are being made by race. “If an employer honors the requests of white workers to avoid certain parts of a city that are perceived as dangerous, but orders Black workers to continue working in those areas despite their concerns, the employer is telling Black workers that their lives and their safety concerns are valued less than the lives and concerns of their white coworkers,” Gilbride said. “That is plainly unlawful, and EEOC will oppose such conduct.” The agency had made no claim that the Black workers were paid less or denied promotions; the case was about which routes and which dock assignments they were given, and the decree combined compensation with measures governing future route assignments.

The Pregnant Workers Fairness Act took effect on June 27, 2023, four months before she arrived, and the program brought some of its first enforcement actions. On September 26, 2024, the agency sued Polaris Industries in the Northern District of Alabama, where a pregnant employee whose physician had limited her to forty hours a week was refused excused absences for pregnancy-related appointments, required to work mandatory overtime and assessed attendance points until she resigned to protect her pregnancy, and Urologic Specialists of Oklahoma in the Northern District of Oklahoma, where a medical assistant in the last trimester of a high-risk pregnancy who needed to sit, take breaks and work part-time was forced onto unpaid leave and then fired when she would not return without guaranteed breaks to express breast milk. The statute requires an interactive effort to identify reasonable changes connected to pregnancy, childbirth or related medical conditions. “No pregnant worker should have to choose between their health and earning a living to support their family,” Gilbride said. “When employers apply inflexible policies that drive pregnant workers out of the workplace rather than engaging in this interactive process, the EEOC will step in to defend workers’ rights under this new law.” Those cases turned on whether pregnant workers could obtain the accommodations they needed, protect their health and keep earning the income their families relied on. Four days later the agency sued an Applebee’s franchisee in Chelsea, Alabama, where a general manager who had previously harassed a sixteen-year-old at another restaurant was kept working alongside the women he harassed and a sixteen-year-old who complained about a thirty-eight-year-old bartender was reprimanded and barred from serving, and a Mississippi gymnastics company whose president and majority owner was alleged to have propositioned a nineteen-year-old employee and offered money for sex. “Young workers are particularly vulnerable to harassment and other forms of workplace discrimination because they have less work experience, are less likely to know when someone crosses a boundary, and may be afraid to report an older or more powerful harasser,” she said. The program’s cases in her tenure ran across disability access, race, sex, gender identity and the harassment of young workers.

Three Hundred and Nine RIF Notices

Late on the night of January 27, 2025, one week into President Trump’s second term, Gilbride received an email from someone in the White House Personnel Office; she had been terminated. “President Trump fired me for doing the job the Senate confirmed me to do,” she said. “The president is not a king,” and there are “checks and balances that, at Public Citizen, I will fight every day to preserve.” On February 3, 2025, Public Citizen Litigation Group named her its deputy director. “Karla has spent her legal career seeking to protect civil rights,” Allison Zieve, the group’s director, said. “I wanted to be at a place on the front lines of making sure that the government doesn’t abuse its power,” Gilbride said of the move. At Public Citizen she filed lawsuits seeking to halt the dismantling of USAID and other federal agencies. “So, I’ve been writing a lot of briefs at 10:00 and 11:00 PM in the last few months,” she said that November. “It was kind of a dream come true for me to do that work.”

The dispute she would lead began on March 21, 2025. Congress had created three oversight offices inside the Department of Homeland Security: the Office for Civil Rights and Civil Liberties, which reviews and investigates complaints about constitutional rights and disability access, from privacy invasions to excessive force by the Border Patrol to facial recognition at airports; the Office of the Immigration Detention Ombudsman, which monitors conditions in detention, conducts unannounced inspections and handles complaints of excessive force, sexual abuse and inadequate medical care; and the Office of the Citizenship and Immigration Services Ombudsman, which helps immigrants and employers with work permits, green cards and other problems at USCIS. All three must report to Congress and the public on the complaints they receive and resolve. On March 6, DHS sent the Office of Personnel Management memoranda proposing a “100% RIF” of the three offices; a March 17 memorandum to Secretary Noem covered 309 employees, 147 at Civil Rights and Civil Liberties, 117 at the detention ombudsman and 45 at the CIS ombudsman; Noem approved on March 20; and on March 21 the employees received identical reduction-in-force notices referring to the “dissolution” of their offices and abolishing every position. They were placed on administrative leave and barred from working that day, including from winding down operations or transferring open complaints and investigations. A DHS spokesperson said the offices had “obstructed immigration enforcement by adding bureaucratic hurdles and undermining DHS’s mission.”

Robert F. Kennedy Human Rights, the Southern Border Communities Coalition and the Urban Justice Center sued DHS and Secretary Noem in the District of Columbia on April 24, 2025, with Gilbride, by then deputy director of Public Citizen Litigation Group, as lead counsel and counsel for all plaintiffs, alongside Democracy Forward. The complaint alleged that the March stop-work and staffing actions had unlawfully disabled the offices responsible for civil-rights complaints, detention oversight, disability access and immigration-service problems, in violation of the Administrative Procedure Act and the separation of powers. “Eliminating these three offices both undermines the ability of individuals to rein in the overreach of DHS, and violates the constitutional principle of separation of powers, flouting Congress’s express determination that these offices must exist,” Gilbride said. “The decision to shutter these offices is an illegal attempt to undermine key civil rights protections and remove vital accountability mechanisms within DHS at a time when they are sorely needed.” The case went to Judge Ana Reyes, who held an evidentiary hearing on the preliminary-injunction motion on May 19 and 20, took testimony from the department’s witness, and ordered DHS to report any personnel changes within twenty-four hours. On May 23, the day the terminations of more than 300 employees were to take effect, the plaintiffs moved at the court’s request for a temporary restraining order; that day Judge Reyes directed DHS to post public notices that the three offices remained open and would keep performing their statutory functions, and the department put the notices on the offices’ webpages that evening. DHS stated publicly that it would not abolish the offices. “Saying these offices continue to exist isn’t enough; DHS must allow these offices to do their jobs,” Gilbride said. “As headlines of illegal and immoral deportations have dominated over the past two months, these offices have not been performing their vital functions.”

The litigation pressed forward over staffing and statutory functions. On January 16, 2026, the plaintiffs moved for summary judgment, asking for a declaration that the dissolution was arbitrary and capricious, contrary to law and beyond the department’s statutory authority, including the limits in 6 U.S.C. § 452 and the sixty-day notice Congress requires before such a reorganization, and for a permanent injunction requiring the offices to resume and continue every statutory function. The government’s cross-motion denied that any dissolution had occurred, describing March 21 as a reduction in force followed by a “realignment” toward statutorily required functions, and argued that the plaintiffs lacked standing, that the Civil Service Reform Act channeled their claims elsewhere, that the decisions were committed to agency discretion, and that the offices were operating again. The plaintiffs’ reply and opposition, filed February 27, 2026, over Gilbride’s signature, set out what operating meant: no one had been hired at Civil Rights and Civil Liberties or the detention ombudsman until August; the offices had hired six employees and three detailees in all; the CIS ombudsman had been left with one full-time employee; Civil Rights and Civil Liberties had issued no recommendation memoranda since March 21, 2025, and had opened its own investigation into 253 of the 5,989 complaints it received; complaints to the detention ombudsman had fallen from more than 12,000 in 2023 to 280 in the nine months after the dissolution, and the office was not conducting the unannounced inspections the statute requires; and the CIS ombudsman had referred 113 requests to the agency against 4,489 that were pending when its staff was sent home. The proposed order would require Civil Rights and Civil Liberties to accept complaints in multiple formats and languages, the detention ombudsman to offer a complaint channel that does not require internet access, and the CIS ombudsman to provide real-time communication with its staff. The case remained pending in August 2026, testing the staffing and functions required to carry out Congress’s oversight mandates.

From Long Island to the ACLU

Gilbride grew up in an affluent town on Long Island, in a well-funded school district, totally blind from the age of two. Her parents pushed back whenever a teacher or an activity leader set expectations low, and they introduced her to blind adults who were succeeding, members of the National Federation of the Blind among them, who insisted on Braille and on technology; she became a fluent Braille reader and was on computers and the internet early. She wanted to be a lawyer as a small child because she loved words and using them to get her way. Her father’s joke was that “She’s going to be a great lawyer someday, because the judge will be so tired of hearing her argue” that “they’ll let her win just to shut her up.” “I have always, from a young age, been very passionate and very angry about any sort of injustice,” she has said. “I definitely got that from my parents as a kid.” What was more formative, she has said, was adults: “when I experienced teachers telling me you can’t do something.” In high school she did speech and debate and mock trial. In 1998 the Federation gave her a scholarship, and at its convention that year she watched a mock trial and saw blind lawyers at work, Scott LaBarre among them; twenty years later LaBarre was co-counsel with her in the Container Store case.

She graduated from Swarthmore College in 2002 with highest honors in linguistics, with a minor in psychology, having studied how children acquire language, and from Georgetown University Law Center with honors in 2007. She clerked for Judge Ronald M. Gould of the Ninth Circuit, spent three years at Disability Rights Advocates in Berkeley litigating disability class actions and representing disabled consumers before the California Public Utilities Commission, moved back east to be closer to her family in New York, handled wage-and-hour, employment-discrimination, consumer class-action and Fair Housing Act matters at Mehri & Skalet in Washington, and spent nearly a decade at Public Justice, co-directing the Access to Justice Project. She is admitted in New York, California and the District of Columbia, in the Supreme Court, and in the First through Eleventh Circuits and the D.C. Circuit. Each chapter widened the circle of people for whom the courthouse door actually opens. She has had three guide dogs. She follows baseball, plays fantasy baseball, hikes, cycles and plays goalball.

On May 13, 2026, the Impact Fund gave her its Social Justice Hero Award and had her keynote its thirty-fourth anniversary gala in San Francisco. “We are living through a moment where abuse of power threatens the bedrock of our democracy,” she said. “Litigation to preserve our civil rights has never been more important.” That month she joined the American Civil Liberties Union as deputy director of its Disability Rights Program, helping lead a team of litigators against disability discrimination and toward the full inclusion of people with disabilities in civic life. On Monday, September 28, 2026, she was back at Swarthmore for a campuswide talk on the role of disability and civil-rights advocacy in the present political landscape, introduced as the first blind attorney to argue before the Supreme Court.