Arnold v. United Parcel Service, Inc.

United States Court of Appeals
For the First Circuit

No. 97-1781

GLEN ARNOLD,

Plaintiff, Appellant,

v.

UNITED PARCEL SERVICE, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Stahl, Circuit Judge,

Aldrich and Bownes, Senior Circuit Judges.

Peter L. Thompson with whom Law Offices of Ronald Coles were on

brief for appellant.
Barbara L. Sloan, with whom C. Gregory Stewart, General Counsel,

J. Ray Terry, Jr., Deputy General Counsel, Gwendolyn Young Reams,

Associate General Counsel, and Vincent J. Blackwood, Assistant General

Counsel, were on brief for Equal Employment Opportunity Commission,
amicus curiae.
Charles W. March and Sunenblick, Reben, Benjamin & March on brief

for American Diabetes Association, amicus curiae.
S. Mason Pratt, Jr., with whom Catherine R. Connors, Brent G.T.

Geraty, and Pierce, Atwood, Scribner, Allen, Smith & Lancaster were on

brief for appellee.
Loretta M. Smith on brief for New England Legal Foundation,

amicus curiae.

February 20, 1998

BOWNES, Senior Circuit Judge. Glen Arnold brought this
BOWNES, Senior Circuit Judge.

action against United Parcel Service, Inc. (UPS), alleging that

UPS refused to hire him because of his disability, diabetes

mellitus, in violation of the Americans with Disabilities Act

(ADA), 42 U.S.C. 12101 et seq. The district court granted

summary judgment to UPS, on the ground that Arnold had not shown

that he had a disability and therefore was not protected by the

ADA's antidiscrimination provision. In making its determination,

the court considered Arnold's diabetes in its treated state,

after taking into account the ameliorative effects of his insulin

medication. Arnold appeals, arguing that such an analysis was

legally erroneous, inconsistent with the ADA and with the EEOC's

interpretive regulations. He also argues that the facts he has

introduced prove that he satisfies the statutory definition of an

"individual with a disability," and that UPS has failed to

demonstrate that it is entitled to judgment as a matter of law.

UPS argues that the district court's analysis of Arnold's

disability was proper, including its consideration of

ameliorative medication. As an alternative ground for upholding

the grant of summary judgment, UPS contends that federal

regulations required it to deny Arnold's application for

employment, and UPS is thereby entitled to judgment as a matter

of law. We reverse and remand.

Facts
Facts

Because this is an appeal from a grant of summary

judgment in favor of defendant UPS, we state the facts in the

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light most favorable to the nonmovant, Arnold. Dubois v. United

States Dep't of Agriculture, 102 F.3d 1273, 1284 (1st Cir. 1996),

cert. denied, 117 S. Ct. 2510 (1997). Plaintiff-Appellant Glen

Arnold has Type I insulin-dependent diabetes mellitus. As such,

he is required to monitor his blood glucose levels throughout the

day, and give himself injections of insulin two to four times a

day. He is also required to pay constant attention to possible

signs of hypoglycemia, and to follow a strict diet and exercise

regimen to control the disease. His physician states that Arnold

would die in the absence of his insulin injections. Arnold has

successfully controlled his diabetes for twenty-three years.

In October, 1995, Arnold telephoned a human resources

representative at UPS about applying for the position of "cover

mechanic." The position called for covering the shifts of night-

time mechanics in four locations: Wells, Maine, and Dover,

Laconia, and Twin Mountain, New Hampshire. Arnold had worked as

an automotive mechanic for six years, and had obtained an

associate degree in automotive technology.

After the initial phone conversation, Arnold met in

person with both the human resources representative for UPS, Paul

Tanguay, and with John Kennedy, UPS's fleet supervisor for its

North New Hampshire division. By all accounts, both meetings

went well. As a result, Kennedy indicated to Arnold that the job

was his if he wanted it.

The next day, Arnold contacted Kennedy, and said that

he wanted the job. The two agreed on an October 16, 1995 start

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date. Arnold was informed shortly thereafter that he would be

required to pass a driving test, have his fingerprints taken,

fill out additional paperwork, and submit to a Department of

Transportation (DOT) physical.1 On or about October 12, 1995,

Arnold filled out the paperwork, was fingerprinted, and passed

the driving test. He was then sent to a local health care

facility, Seacoast Redicare, for the DOT physical. At the

physical, Arnold, responding to a question from the physician,

indicated that he was an insulin-dependent diabetic. The

physician informed him that DOT regulations preclude insulin-

dependent diabetics from obtaining the DOT certification required

to operate commercial motor vehicles. On return to UPS, Tanguay

informed Arnold that UPS could not hire him because he was unable

to obtain DOT certification. Tanguay instead offered Arnold an

alternate position, as a package "pre-loader," a position which

provides substantially lower pay. Arnold did not respond to this

alternate job offer.

Arnold instituted this action on October 9, 1996 in the

United States District Court for the District of Maine under the

ADA, 42 U.S.C. 12101 et seq., and the Maine Human Rights Act, 5

M.R.S.A. 4551 et seq. On March 14, 1997, after discovery had

been completed, UPS filed a motion for summary judgment. On May

5, 1997, Magistrate Judge David Cohen submitted his Recommended

Decision, ruling in favor of UPS on the grounds that, because

1. UPS requires all of its mechanics to acquire certification to
operate commercial motor vehicles as ostensibly mandated by the
United States Department of Transportation.

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Arnold's diabetes was effectively controlled by insulin

injections, he was not disabled within the meaning of the ADA.

On May 30, 1997, the district court (Hornby, J.) affirmed

Magistrate Judge Cohen's recommendation, and entered judgment in

favor of UPS. This appeal followed.

I
I

The district court determined that, as a matter of law,

Arnold was not disabled within the meaning of the ADA, because

his insulin-dependent diabetic condition did not substantially

limit one or more of his major life activities.2 The district

court addressed the question of substantial limitation by

analyzing Arnold's diabetic condition after he took his

ameliorative medications, rather than analyzing his unameliorated

diabetes. For the reasons that follow, we think this analysis

was erroneous as a matter of law.

A
A

The "starting point for interpretation of a statute 'is

the language of the statute itself.'" Kaiser Aluminum & Chem.

Corp. v. Bonjorno, 494 U.S. 827, 835 (1990) (quoting Consumer

Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108

2. Arnold also sued under the Maine Human Rights Act. Because
interpretation of the Maine Act has historically "proceeded hand
in hand" with interpretation of the ADA, and because the ADA has
"provided guidance to Maine courts in interpreting the state
statute," Soileau v. Guilford of Maine, Inc., 105 F.3d 12, 14

(1st Cir. 1997) (citing Winston v. Maine Technical College Sys.,

631 A.2d 70, 74 (Me. 1993)), our resolution of the ADA claims,
alleging unlawful discrimination and failure to make reasonable
accommodations to Arnold's disability, will very likely dispose
of Arnold's single state-law claim of disability discrimination,
which we leave to the district court on remand.

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(1980)); see Telematics Int'l, Inc. v. NEMLC Leasing Corp., 967

F.2d 703, 706 (1st Cir. 1992). If the language of a statute "is

plain and admits of no more than one meaning" and "if the law is

within the constitutional authority of the law-making body which

passed it," then "the duty of interpretation does not arise" and

"the sole function of the courts is to enforce the statute

according to its terms." Caminetti v. United States, 242 U.S.

470, 485 (1917); see also Chevron USA Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837, 842-43 (1984). The plain

meaning of a statute's text must be given effect "unless it would

produce an absurd result or one manifestly at odds with the

statute's intended effect." Parisi by Cooney v. Chater, 69 F.3d

614, 617 (1st Cir. 1995). Of course, we focus on "the plain

meaning of the whole statute, not of isolated sentences."

Beecham v. United States, 511 U.S. 368, 372 (1994), and we

interpret the statute's words "'in light of the purposes Congress

sought to serve,'" Dickerson v. New Banner Inst., Inc., 460 U.S.

103, 118 (1983) (quoting Chapman v. Houston Welfare Rights Org.,

441 U.S. 600, 608 (1979)).

Thus, the district court is correct that we need not

look into a statute's legislative history if the statutory

language is plain, see Summit Inv. & Dev. Corp. v. Leroux, 69

F.3d 608, 610 (1st Cir. 1995) ("Plain statutory language does not

prompt recourse to countervailing legislative history."), at

least in the absence of a "clearly expressed legislative intent

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to the contrary,"3 Dickerson, 460 U.S. at 110 (internal quotation

marks and citation omitted); United States v. Caron, 77 F.3d 1, 4

(1st Cir. 1996). If the text is not unambiguously clear,

however, we are obliged to turn to other sources to discern the

legislature's meaning. One important source, of course, is the

legislative history. If that history reveals an unequivocal

answer, we do not look to the interpretation that may be given to

the statute by the agency charged with its enforcement.

Strickland v. Commissioner, Maine Dep't of Human Servs., 48 F.3d

12, 17 (1st Cir. 1995) (applying the test of Chevron, 467 U.S. at

842-44). If the plain language and legislative history still

leave some room for uncertainty about the statute's meaning, the

court defers to the interpretation by an agency charged with

enforcement of the statute, as long as that interpretation "flows

rationally from a permissible construction of the statute." Id.;

see Chevron, 467 U.S. at 843.

B
B

3. "[E]ven the most basic general principles of statutory
construction must yield to clear contrary evidence of legislative
intent." National R.R. Passenger Corp. v. National Ass'n of R.R.

Passengers, 414 U.S. 453, 458 (1974). Thus, "[w]e have

overridden literal language where it appeared inadvertent and
undermined Congress' aim." United States v. Estrella, 104 F.3d

3, 8 (1st Cir.), cert. denied, 117 S. Ct. 2494 (1997) (citing

United States v. Indelicato, 97 F.3d 627, 629-30 (1st Cir. 1996),

cert. denied, 117 S. Ct. 1013 (1997)). Circuit courts have even

held that a court should reject the literal meaning of a statute
in favor of one which furthers congressional intent. See Merz v.

Secretary of Health & Human Servs., 969 F.2d 201, 205-7 (6th Cir.

1992); Sciarotta v. Bowen, 837 F.2d 135, 138-39 (3d Cir. 1988);

Swain v. Schweiker, 676 F.2d 543, 546-47 (11th Cir. 1982).

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In the instant case, the statutory language is far from

clear, particularly with respect to the key question in dispute

here: should a court, in determining whether Arnold is "an

individual with a disability," consider his untreated medical

condition or his condition after treatment with ameliorating

medications?

The ADA protects a qualified individual with a

disability from discrimination in employment, among other things.

42 U.S.C. 12112(a) (1994). The statute defines "disability" to

mean "(A) a physical or mental impairment that substantially

limits one or more of the major life activities of [an]

individual; (B) a record of such an impairment; or (C) being

regarded as having such an impairment." 42 U.S.C. 12102(2)

(1994). An individual must meet one of these three prongs in

order to be covered under the ADA. If an individual is not

"disabled" within the meaning of one of the three prongs, the ADA

does not protect that person against discrimination on the basis

of his disability, and we need not proceed beyond this threshold

issue to determine either whether any adverse action has been

taken based upon the person's disability or whether the employer

should have reasonably accommodated that disability.

The statute does not itself define the terms

"impairment," "substantially limits," or "major life activity,"

all of which could have more than one meaning. In particular,

the statute does not indicate whether medications, prosthetic

devices, or other ameliorative treatments should be considered by

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a court in determining whether an individual suffers from an

impairment and whether such impairment substantially limits a

major life activity. "The statute certainly does not say

'impairment plus treatment' or 'impairment after treatment' or

'treated impairment'; it just says 'impairment.'" Sicard v. City

of Sioux City, 950 F. Supp. 1420, 1436 (N.D. Iowa 1996). A

reasonable person could interpret the plain statutory language to

require an evaluation either before or after ameliorative

treatment.

If Congress has not expressly defined a statutory term

or phrase, a court should "normally construe it in accordance

with its ordinary or natural meaning." Smith v. United States,

508 U.S. 223, 228 (1993); see Telematics, 967 F.2d at 706. But

even as to the "ordinary or natural meanings" of the ADA's words,

reasonable minds can differ, especially regarding whether

ameliorative measures should be taken into account in determining

whether an individual is disabled within the meaning of the ADA.

UPS argues that the statutory language plainly and

unambiguously requires consideration of the impairment as treated

with all ameliorative medications and other measures. In UPS's

words, "substantially limits means substantially limits." But

this formulation begs the question. The ambiguous issue is

whether the ADA's reference to an "impairment" (which might or

might not substantially limit a major life activity) means an

impairment without treatment or an impairment after treatment.

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The word "impairment" could conceivably be read to mean

"impairment after the underlying condition is treated with

ameliorative therapy," which is essentially the way the district

court interpreted it. Or the word could be read to mean

"impairment that results from the underlying condition in the

absence of any ameliorative treatment," as the EEOC and the

Justice Department have read it. The statutory language, on its

face, gives no clue as to which interpretation Congress intended.

Certainly that language does not plainly and unambiguously refute

Arnold's contention that his underlying medical condition --

diabetes mellitus -- constitutes an "impairment" that is

protected by the ADA. Similarly, "[a]lthough the term

'substantially limits' may be unambiguous in and of itself, it

nonetheless does not speak to the issue before [us]; that is, the

statute is silent as to whether a substantial limitation is to be

considered with or without regard to mitigating measures."

Wilson v. Pennsylvania State Police Dep't, 964 F. Supp. 898, 904

(E.D. Pa. 1997) (footnote omitted).

Thus, the plain language of the ADA is not so clear and

unambiguous as the district court and UPS have characterized it,

so we turn to other tools of statutory construction.

C
C

We begin with the legislative history of the ADA. Both

the explicit language and the illustrative examples included in

the ADA's legislative history make it abundantly clear that

Congress intended the analysis of an "impairment" and of the

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question whether it "substantially limits a major life activity"

to be made on the basis of the underlying (physical or mental)

condition, without considering the ameliorative effects of

medication, prostheses, or other mitigating measures. For

example, the House and Senate Committee reports explicitly state

that, in determining whether an impairment substantially limits a

major life activity, the impairment "should be assessed without

considering whether mitigating measures, such as auxiliary aids

or reasonable accommodations, would result in a less-than-

substantial limitation." H.R. Rep. No. 101-485, pt. III, at 28

(1989), reprinted in 1990 U.S.C.C.A.N. 445, 451 (House Judiciary

Report); see H.R. Rep. No. 101-485, pt. II, at 52 (1990),

reprinted in 1990 U.S.C.C.A.N. 303, 334 ("House Labor Report")

(The determination whether an individual has a "disability"

within the scope of ADA coverage "should be assessed without

regard to the availability of mitigating measures, such as

reasonable accommodations or auxiliary aids."); S. Rep. No. 101-

116, at 23 (1989) ("Senate Report")(same).

Indeed, Congress spoke directly to the medical

condition at issue in this case: "persons with impairments, such

as epilepsy or diabetes, which substantially limit a major life

activity," are considered to have an actual disability, "even if

the effects of the impairment are controlled by medication."

House Labor Report at 52; see id. at 51 (Although it is not

possible to list all impairments covered by the ADA, "[t]he term

includes . . . diabetes."); Senate Report at 22 (same). These

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reports make it abundantly clear that Congress intended that the

statutory definition of disability -- an "impairment that

substantially limits [a] major life activit[y]" -- refers to the

underlying medical condition, in this case Arnold's diabetes,

without regard to whether "the effects of the impairment are

controlled by medication." House Labor Report at 52.4

The district court focused on another statement in the

Senate Report (contained in the Report's discussion of prong 3

but not contained in the House Reports):

Another important goal of the third prong of
the definition is to ensure that persons with
medical conditions that are under control,
and that therefore do not currently limit
major life activities, are not discriminated
against on the basis of their medical
conditions. For example, individuals with
controlled diabetes or epilepsy are often
denied jobs for which they are qualified.
Such denials are the result of negative
attitudes and misinformation.

Senate Report at 24; see Arnold v. United Parcel Serv., Inc., No.

96-294-P-H, slip op. at 13 (D. Me. May 5, 1997). Noting that

this "speaks to the 'uncertainty' about the value of legislative

history, and the attendant skepticism with which courts should

view such documents," the district court relies on the above-

quoted passage from the Senate Report to conclude that the EEOC's

interpretation does not flow rationally from a "permissible

construction of the statute." Arnold, slip op. at 13 (applying

the test of Chevron, 467 U.S. at 843). The court reached this

4. Both the House Labor Report, at 51-52, and the Senate Report,
at 22, specifically list diabetes as an impairment under prong

one of the ADA's definition of "disability."

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conclusion despite its recognition that "the need for deference

to the agency's view 'looms large.'" Id. (quoting Strickland, 48

F.3d at 17). The district court reasoned that the Senate

Report's allusion to uncontrolled diabetes in the context of

prong three demonstrates that Congress did not intend

uncontrolled medical conditions to be included in prong one of

the definition of "disability." But the district court has no

explanation for why the Senate Report had previously said, in its

discussion of prong one, that the question "whether a person has

a disability should be assessed without regard to the

availability of mitigating measures, such as reasonable

accommodations or auxiliary aids." Senate Report at 23. Nor

does the court explain why both House Reports and the Senate

Report do not mean exactly what they say (evaluating "disability"

without consideration of mitigating measures), especially since

only the Senate Report made the supposedly significant statement

limited to prong three.

Most significantly, this "prong three" passage in the

Senate Report is not actually inconsistent with that report's

prior language (identical with that of the House Report) stating

that courts should focus on the untreated impairments: these

passages can be easily squared by recognizing that an individual

could have a "disability" under both prong one (having an

impairment that substantially limits a major life activity) and

prong three ("regarded as" having such an impairment) at the same

time; one does not preclude the other. The ADA protects any

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individual with a "disability" against both discrimination based

on prong one and discrimination based on prong three.

D
D

"'As in all cases of statutory construction, our task

is to interpret the words of [the statute] in light of the

purposes Congress sought to serve.'" Dickerson, 460 U.S. at 118

(quoting Chapman, 441 U.S. at 608) (alteration in Dickerson); see

Caron, 77 F.3d at 3-4. Thus, "[t]he definition of disability

must be understood in light of congressional objectives in

enacting the ADA." Soileau v. Guilford of Maine, Inc., 105 F.3d

12, 14 (1st Cir. 1997). The district court's interpretation of

the ADA to require evaluation of an impairment like Arnold's

diabetes only after ameliorative treatment such as insulin

medication is inconsistent with those congressional objectives.

The ADA is a "broad remedial statute." Penny v. United

Parcel Serv., 128 F.3d 408, 414 (6th Cir. 1997). It is a

"familiar canon of statutory construction that remedial

legislation," such as the ADA, "should be construed broadly to

effectuate its purposes." Tcherepnin v. Knight, 389 U.S. 332,

336 (1967). The fundamental purpose of the ADA is "to provide a

clear and comprehensive national mandate for the elimination of

discrimination against individuals with disabilities." 42 U.S.C.

12101(b)(1) (1994). In the context of employment

discrimination, the thrust of this purpose is essentially to

protect individuals who have an underlying medical condition or

other limiting impairment, but who are in fact capable of doing

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the job, with or without the help of medications, prosthetic

devices, or other ameliorative measures, and with or without a

reasonable accommodation by the employer. See, e.g., 42 U.S.C.

12101(a)(7) ("individuals with disabilities . . . have been faced

with restrictions and limitations, [and] subjected to a history

of purposeful unequal treatment, . . . based on characteristics

that are beyond the control of such individuals and resulting

from stereotypic assumptions not truly indicative of the

individual ability of such individuals to participate in, and

contribute to, society").5 The ADA protects such individuals

from discriminatory actions by some employers who might

erroneously believe the individual's medical condition renders

her unable to do the particular job for which she has applied, or

who might harbor an irrational prejudice against people suffering

from such medical conditions. Cf. School Bd. of Nassau County v.

Arline, 480 U.S. 273, 284 & n.13 (1987) (discussing the purpose

of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794

(1994)).

5. See also id. 12101(a)(2) ("historically, society has tended

to isolate and segregate individuals with disabilities, and,
despite some improvements, such forms of discrimination against
individuals with disabilities continue to be a serious and
pervasive social problem"); 12101(a)(3) ("discrimination
against individuals with disabilities persists in such critical
areas as employment"); 12101(a)(5) ("individuals with
disabilities continually encounter various forms of
discrimination, including outright intentional exclusion, the
discriminatory effects of . . . exclusionary qualification
standards and criteria, segregation, and relegation to lesser . .
. jobs").

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Conceptually, it seems more consistent with Congress's

broad remedial goals in enacting the ADA, and it also makes more

sense, to interpret the words "individual with a disability"

broadly, so the Act's coverage protects more types of people

against discrimination. Even with such a broad view of

"disability," the concerns and interests of employers are still

amply protected through the Act's other provisions. For example,

the individual with a disability who seeks a job must still be

"qualified," i.e., able to perform the essential functions of the

job. 42 U.S.C. 12111(8), 12112(a) (1994). Additionally, if

an accommodation is required in order to enable the individual to

perform some of those job functions, we will examine the

reasonableness of that accommodation, including its cost and

other burdens on the employer's business operations. 42 U.S.C.

12111(9), (10); see also Arline, 480 U.S. at 285 ("[T]he

definition of 'handicapped individual' [in 504 of the

Rehabilitation Act] is broad, but only those individuals who are

both handicapped and otherwise qualified are eligible for

relief.").6

The structure of the Act supports this conceptual

distinction: the term "disability" is defined in 12102, a

general section applicable to all subchapters and to all areas.

The Act thus covers all "disabled" individuals and protects their

rights to the extent defined in each subchapter. The terms

6. We use case law under 504 of the Rehabilitation Act for
guidance in interpreting the ADA. EEOC v. Amego, Inc., 110 F.3d

135, 143 (1st Cir. 1997)(citing 42 U.S.C. 12117(b)).

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"qualified" and "reasonable accommodation" are defined in

12111, limited to "Subchapter 1 -- Employment." This particular

subchapter defines and limits the substantive rights and

responsibilities of employers and employees (or applicants for

employment), balancing the interests of each, in furtherance of

the purposes of the Act, within the particular context of

employment.

UPS argues that, were we to accept a broad definition

of "individual with a disability" (i.e., if we examine the

definition without considering ameliorative measures), then an

unacceptably large percentage of the population will fall within

the protective umbrella of the ADA. But that is what Congress

intended. The very first finding Congress listed in the preamble

to the Act is that "some 43,000,000 Americans have one or more

physical or mental disabilities, and this number is increasing as

the population as a whole is growing older." 42 U.S.C.

12101(a)(1). It thus appears that Congress not only considered

but actually intended that the ADA's protections sweep broadly,

covering a significant portion of the American populace.

One example that demonstrates how UPS's interpretation

of the statute would be inconsistent with the Act's broad

remedial purposes was pointed out by the EEOC in its amicus

brief. Under UPS's interpretation, someone who could not afford

treatment for his impairment would be protected by the ADA from

discrimination in hiring. But once he was hired and obtained

treatment under the employer's health plan, he would lose the

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ADA's protection because he would no longer be "disabled." The

employer could then fire him on the basis of his disability

without fear of the protective consequences embodied in the ADA.

UPS argues that "[t]his is simply not true; such conduct would be

the very sort of situation the 'regarded as' prong was designed

to cover." Even if such conduct were covered under prong three,

that would not mean the same conduct is not also covered under

prong one. Indeed, the House Report specifically mentions

"persons with impairments, such as epilepsy or diabetes, which

substantially limit a major life activity" and says that they are

"covered under the first prong of the definition of disability,

even if the effects of the impairment are controlled by

medication." House Report at 52 (emphasis added); see Senate

Report at 22. There is no reason this employee could not be

protected under two prongs simultaneously. In light of the broad

remedial purposes of the ADA, see Penny, 128 F.3d at 414, we

believe Congress intended the Act to prohibit such a termination

under prong one.

Similarly, UPS's reading would treat differently a

plaintiff like Arnold (who takes his medications and thus would

not be protected by the ADA, according to UPS) and a plaintiff

who is also diabetic (i.e., suffering from the same medical

condition as Arnold) but who cannot afford to take his

medications. The latter plaintiff would be protected by the ADA

according to UPS's analysis, but Arnold would not. We do not

think Congress intended such an anomalous result.

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Arnold's diabetes makes him just the type of person the

ADA was designed to protect. He would have been hired by UPS but

for his inability to get a commercial vehicle license, which was

prevented only because he had diabetes (the underlying medical

condition, without taking into account ameliorative treatment).

But Arnold alleges that, with treatment, he can perform the job

despite his impairment if UPS will reasonably accommodate him.

This would ordinarily be a factual question on the merits for the

court to determine. Yet under UPS's and the district court's

interpretation of the ADA, a person in this archetypal situation

is not protected from discrimination by the ADA because he is not

disabled and hence not even a proper plaintiff under the Act.

According to UPS, in such circumstances, the trier of fact never

gets to the merits of the alleged discrimination, of the

"qualified individual" requirement,or of reasonableaccommodation.

UPS's interpretation fails because, by "confus[ing] the

disease with its treatment," Matczak v. Frankford Candy &

Chocolate Co., No. 96-1057, slip op. at 6 (3d Cir. Nov. 18,

1997), it conflates two separate parts of the ADA. The

determination as to whether an individual is "disabled" is a

threshold issue; if one is not disabled, then one is not

protected by the ADA against discrimination. See Soileau, 105

F.3d at 15. Once a person is determined to be covered by the

ADA, then that person has a right not to be discriminated against

in employment (inter alia) on the basis of her disability, as

long as she is qualified for the job, with or without a

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reasonable accommodation. Were we to adopt UPS's position in

this case, a plaintiff would have to prove that she is

"substantially limited" even with ameliorative medication -- and

therefore possibly unable to perform some of the essential

elements of the job -- in order just to be covered by the ADA's

protective umbrella. Thus, under UPS's interpretation, the

employer could avoid liability for discrimination by excluding

the plaintiff from the ADA's coverage, without giving the

applicant an opportunity to show that she is qualified for the

job (with or without a reasonable accommodation), with

ameliorative medication. See Robert L. Burgdorf, Jr., The

Americans With Disabilities Act: Analysis and Implications of a

Second-Generation Civil Rights Statute, 26 Harv. C.R.-C.L. L.

Rev. 413, 448 (1991) (describing this as a "Catch-22 situation").

All of the policy concerns that UPS raises in its brief

can be addressed in the discrimination determination, i.e., the

determination of whether the plaintiff is otherwise qualified for

the job or can be made so with a reasonable accommodation. UPS

will have every opportunity to demonstrate that Arnold is unable

to perform one or more of the essential functions of the job.

Indeed, the burden will be on Arnold to demonstrate that he is

qualified for the job. UPS will also be free to try to show that

any accommodations Arnold needs would be too expensive or

otherwise too burdensome to be considered "reasonable." But none

of UPS's articulated concerns are applicable at the threshold

stage where the court is determining whether the individual is

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disabled and therefore protected by the ADA in the first place.

Thus, contrary to UPS's reading, the ADA's definition of

"disability" is most consistent with the broad purposes of the

statute if Arnold's impairment and its effects are evaluated in

their untreated state, without the ameliorative effect of

medications on his underlying medical condition.7

Evaluating the statutory language of the ADA in light

of the legislative history and the broad remedial purposes of the

Act, we conclude that Congress intended a reviewing court to

evaluate Arnold's disability based on his underlying medical

condition without considering the ameliorative effects of his

insulin medication. The district court erred in holding to the

contrary.

E
E

Even if the legislative history were not clear on this

point, the court also erred in failing to afford adequate

consideration to the similar interpretation set forth by the EEOC

7. UPS's interpretation could very well produce results
antithetical to its expressed concerns and to the Act's attempt
to take such concerns into account. That a person with a
disability is able to use medical knowledge or technology to
overcome many of the effects of his illness (in Arnold's case, by
a continuing regimen of medicine, proper eating habits, and rest)
may mean that he will, in practice, rarely require any sort of
accommodation from his employer; but his achievement should not
leave him subject to discrimination based on his underlying
disability. He should not be denied the protections of the ADA
because he has independently taken the initiative and
successfully brought his diabetes under control. It is hard to
imagine that Congress wished to provide protection to workers who
leave it to their employer to accommodate their impairments but
to deny protection to workers who act independently to overcome
their disabilities, thereby creating a disincentive to self-help.

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21

in its guidelines. The ADA authorizes -- indeed "requires" --

the EEOC to "issue regulations in an accessible format to carry

out" the Act. 42 U.S.C. 12116 (1994). Pursuant to that

authority, the EEOC has promulgated regulations, attached to

which as an appendix it has compiled guidelines for interpreting

the statute. According to those guidelines, the determinations

of whether an individual has an "impairment" and whether that

impairment "substantially limits a major life activity" should be

made "on a case by case basis, without regard to mitigating

measures such as medicines, or assistive or prosthetic devices."

EEOC Interpretive Guidance, 29 C.F.R. Part 1630, App.

1630.2(h) (1997) (physical impairment) and 1630.2(j)

(substantially limits) (noting that "a diabetic who without

insulin would lapse into a coma would be substantially limited

because the individual cannot perform major life activities

without the aid of medication" (citing Senate Report at 23; House

Labor Report at 52)).

We recognize that the EEOC interpretive guidelines are

not controlling in the way that regulations promulgated pursuant

to the Administrative Procedure Act, 5 U.S.C. 552, are

controlling.8 Nevertheless, such interpretive guidelines "'do

8. Under Chevron, 467 U.S. at 842-44, unless the plain language

of a statute (or that language viewed in light of the legislative
history) is clear, courts will defer to an interpretation of the
statute by the agency charged with its enforcement if the
agency's interpretation is "a permissible construction" of the
statute's language and legislative history. Id. at 843. A

permissible construction is one that is not "arbitrary,
capricious, or manifestly contrary to the statute." Id. at 844.

"The court need not conclude that the agency construction was the

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constitute a body of experience and informed judgment to which

courts and litigants may properly resort for guidance.'" Meritor

Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986) (quoting General

Elec. Co. v. Gilbert, 429 U.S. 141-42 (1976)); Grenier v.

Cyanamid Plastics, Inc., 70 F.3d 667, 673 (1st Cir. 1995). They

deserve at least as much consideration as a mere "internal agency

guideline," which the Supreme Court has held is entitled to "some

deference" as long as it is a permissible construction of the

statute. Reno v. Koray, 515 U.S. 50, 61 (1995); see also

Commonwealth of Mass. v. F.D.I.C., 102 F.3d 615, 621 (1st Cir.

1996) (holding that even something as informal as "[a]n

established administrative practice interpreting a statute" or "a

new policy . . . announced in a . . . presentation by one of the

[agency's] staff attorneys at a conference" "may be entitled to

deference," although "something less than full Chevron

deference," even if the administrative practice or new policy is

"not yet reduced to specific regulation" (citing F.D.I.C. v.

Philadelphia Gear, 476 U.S. 426, 439 (1986))).

The EEOC's interpretation is not merely "permissible";

it is entirely consistent with the ADA's legislative history and

broad remedial purposes. See supra at Parts C and D. Moreover,

this court has previously "looked to" the same body of EEOC

Interpretive Guidance that is at issue here, 29 C.F.R. Part 1630,

only one it permissibly could have adopted to uphold the
construction, or even the reading the court would have reached if
the question initially had arisen in a judicial proceeding." Id.

at 843 n.11 (citing FEC v. Democratic Senatorial Campaign Comm.,

454 U.S. 27, 39 (1981)).

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23

App. 1630, to illuminate our efforts to "interpret[] the ADA."9

Grenier, 70 F.3d at 672; see Carparts Distrib. Ctr. v. Automotive

Wholesaler's Ass'n, Inc., 37 F.3d 12, 16 (1st Cir. 1994). In

addition, the reasonableness of the EEOC's interpretation is

bolstered by a virtually identical interpretation by the United

States Department of Justice, which is charged with enforcing the

ADA's prohibition of discrimination based on disability on the

part of state and local governmental entities. See 28 C.F.R.

Part 35, App. A 35.104 ("disability should be assessed without

regard to the availability of mitigating measures").

Defendant UPS claims that the EEOC's interpretation

(and, inferentially, the Justice Department's) reads the words

"substantially limits" out of the statute. The Eleventh Circuit

rejected this argument in Harris v. H & W Contracting Co., 102

F.3d 516, 521 (11th Cir. 1996), and so do we. UPS's argument

essentially begs the question. The key question is whether the

statutory word "impairment" refers to treated or untreated

impairments. The "substantially limits" requirement pertains to

the impairment referred to in the first part of the definitional

sentence, regardless of whether that impairment is read to mean

the condition in its treated or untreated state. Thus, far from

reading that requirement out of the statute, the EEOC's

interpretive guideline helps to clarify an ambiguity in the

9. UPS itself relies on a different section of the same EEOC
Interpretive Guidance, 29 C.F.R. Part 1630, App. 1630.15(e), in
making its argument that the district court decision should be
affirmed for a different reason than the court gave.

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statute, and places the statutory words "substantially limits" in

proper relation to the impairment. The guideline reads

"substantially limits" as referring to the untreated impairment

rather than the treated impairment. The trier of fact must still

decide whether the untreated impairment "substantially limits"

any major life activity before the untreated impairment

constitutes a "disability" within the meaning of the ADA. This

is a permissible reading of the ambiguous statutory language.

Id. Surely, nothing in the language of the Act rules out this

approach. Indeed, as noted supra, at least with respect to

insulin-dependent diabetes mellitus, Congress appears to have had

such an interpretation specifically in mind. See House Labor

Report at 51-52; Senate Report at 22-23.

UPS further argues that the EEOC "must be saying" that

a person taking insulin is per se significantly restricted. This

claim is also meritless. Nowhere does the EEOC interpretive

guideline say that any particular medical condition would per se

be treated as a disability or that any similar per se rule should

apply. On the contrary, the EEOC regulations and guidelines

emphasize the requirement that every person's situation be

treated individually. See Appendix to Part 1630, "Background"

(observing that "[t]his case-by-case approach is essential"); 29

C.F.R. Part 1630, App. 1630.2(j) (Determinations of

"impairment" and "substantial limit[ation]" should be made "on a

case by case basis."); id. ("Some impairments may be disabling

for particular individuals but not for others."). Again, the

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25

only question before us is whether the impairment whose effects

are evaluated in this case-by-case approach is the treated or the

untreated medical condition.

UPS's argument blurs the distinction between our

analytical process or methodology, on the one hand, and the

substantive conclusion that results from that process. The

EEOC's reading of the statute does not become a per se rule

simply because, when an individualized evaluation is applied to

individuals who have a particular medical condition, the result

will almost always turn out to be the same. For example, even

under UPS's reading of the statute, virtually all quadriplegics

will probably be found to qualify as "individuals with

disabilities" under the ADA, but this result does not mean courts

are applying a per se rule rather than an individualized

analysis.

F
F

Finally, the majority of federal circuit courts that

have considered this issue have followed the EEOC interpretation

that ameliorative measures should not be considered in

determining whether an impairment substantially limits an

individual's major life activities. See Matczak, slip op. at 6-

7; Doane v. City of Omaha, 115 F.3d 624, 627-28 (8th Cir.), cert.

denied, 118 S. Ct. 693 (1998); Harris, 102 F.3d at 520-21

(reviewing legislative history and concluding that the EEOC

Interpretive Guidance is a permissible construction of the

statute); Holihan v. Lucky Stores, Inc., 87 F.3d 362, 366 (9th

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26

Cir. 1996), cert. denied, 117 S. Ct. 1349 (1997); Roth v.

Lutheran Gen. Hosp., 57 F.3d 1446, 1454 (7th Cir. 1995). But see

Sutton v. United Air Lines, 130 F.3d 893, 902 (10th Cir. 1997);

Gilday v. Mecosta County, 124 F.3d 760, 767 (6th Cir. 1997)

(Kennedy, J., concurring in part and dissenting in part); id. at

768 (Guy, J., concurring in part and dissenting in part); Ellison

v. Software Spectrum, Inc., 85 F.3d 187, 191 n.3 (5th Cir. 1996)

(dicta).

UPS argues in its brief that these courts did not

really follow the EEOC interpretation of the law but rather

"merely acknowledged the existence of the EEOC guidelines." UPS

is simply wrong. Matczak, Doane, Roth, and Harris do not merely

"acknowledge" the "existence" of the guidelines. They state a

principle of law -- that ameliorative medications are not to be

considered in determining whether an individual is disabled and

therefore protected by the ADA from discrimination -- and then

cite the EEOC guidelines as one ground in support of this

principle. See Matczak, slip op. at 6-7; Doane, 115 F.3d at 627

(stating that "analysis of whether [plaintiff] is disabled does

not include consideration of mitigating measures"); Roth, 57 F.3d

at 1454; Harris, 102 F.3d at 521 (concluding that the EEOC's

interpretation is "firmly rooted in the ADA's legislative

history").

UPS is correct that the Harris court, in reaching the

same conclusion, applied full Chevron deference to the EEOC's

guidelines, rather than the lesser degree of deference that

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27

Meritor requires for interpretive rules that have not undergone

the full APA promulgation process. See Meritor, 477 U.S. at 65;

see also supra at 22. But the conclusion in Harris remains

valid, including its determination that the EEOC's interpretation

of the ADA is a permissible one. UPS has no persuasive rebuttal

to the lesser degree of deference that we have applied pursuant

to Meritor -- giving some consideration to the EEOC's

interpretation. Like the Harris court, we find the EEOC's

interpretation to be consistent with the ADA's legislative

history, as outlined supra, and with the overall protective

purpose of the ADA; the interpretation is therefore permissible.

We conclude, therefore, that the ADA protects Arnold

from discrimination if he is disabled based on his underlying

medical condition, without regard to whether some of his

limitations are ameliorated through medication or other

treatment. This holding is based on the facts of this case and

is limited to the condition presented here, namely diabetes

mellitus. We venture no opinion as to whether we would reach the

same conclusion if other medical conditions or other facts were

presented.10 We conclude in this case that the EEOC's guidelines

are worthy of consideration and that Arnold's diabetes, in its

10. For example, we might reach a different result in the case
of a myopic individual whose vision is correctable with
eyeglasses. The availability of such a simple, inexpensive
remedy, that can provide assured, total and relatively permanent
control of all symptoms, would seem to make correctable myopia
the kind of "minor, trivial impairment[]," Senate Report at 23,
that would not be considered a disability under the ADA.

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28

untreated state, is a disability protected from discrimination by

the ADA.11

The judgment of the district court is reversed, and the
reversed

case is remanded for further proceedings consistent with this
remanded

opinion. Costs on appeal are awarded to Arnold.

11. Arnold argues that, even looking at his condition after
amelioration, his impairment substantially limits his ability to
engage in a number of major life activities. We need not address
this question, because we have held that the appropriate analysis
under the ADA is to evaluate his impairment's limiting effects
without regard to ameliorative medication and treatment.

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