USCA1 Opinion

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

____________________________

brief for appellant.

Barbara L. Sloan,
________________

with whom C. Gregory Stewart, General

__________________

J. Ray Terry, Jr., Deputy

___________________

General Counsel,

Couns

Gwendolyn Young Rea

____________________

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

____________________
Counsel,

were on brief

for Equal Employment

Opportunity Commissi

amicus curiae.
Charles W. March and Sunenblick, Reben, Benjamin & March on
________________
___________________________________

br

for American Diabetes Association, amicus curiae.

S. Mason Pratt, Jr., with whom
____________________

Catherine R. Connors, Brent G

_____________________ _______

Geraty, and Pierce, Atwood, Scribner, Allen, Smith & Lancaster were
______
__________________________________________________

brief for appellee.

Loretta M. Smith
__________________

on brief

for

New

England Legal

Foundati

amicus curiae.

____________________

February 20, 1998

____________________

BOWNES, Senior Circuit Judge.

Glen Arnold brought this

BOWNES, Senior Circuit Judge.

____________________

action against United

Parcel Service, Inc. (UPS),

UPS

him

refused

mellitus, in

to hire

violation of

(ADA), 42 U.S.C.

12101

because of

his

the Americans

et seq.
______

The

alleging that

disability, diabetes

with Disabilities

district court

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

that

he had a disability and therefore

ADA's antidiscrimination provision.

the

court considered

Act

granted

shown

was not protected by the

In making its determination,

Arnold's diabetes

in

its treated

state,

after taking into account the ameliorative effects of his insulin

medication.

Arnold appeals, arguing

legally erroneous, inconsistent

interpretive regulations.

that such an

analysis was

with the ADA and with the EEOC's

He also argues that the

facts he has

introduced prove that he satisfies the statutory definition of an

"individual

with

disability," and

that

UPS

has failed

demonstrate that it is

entitled to judgment as a matter

UPS

district

argues

disability

ameliorative

the

grant

regulations

that

the

was

proper,

medication.

of

summary

required

employment, and UPS

of law.

court's

including

its

of

of law.

Arnold's

consideration

of

As an alternative ground for upholding

judgment,

it

analysis

to

to

deny

UPS

contends

Arnold's

that

federal

application

is thereby entitled to judgment

for

as a matter

We reverse and remand.

Facts
Facts
_____

Because this

judgment in

favor of

is

an appeal

from

defendant UPS, we

a grant

of

state the facts

summary

in the

-22

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

day.

himself injections of insulin two

He is also required to

signs of hypoglycemia,

pay constant attention to possible

and to follow a strict

regimen to control the disease.

would die in

to four times a

diet and exercise

His physician states that Arnold

the absence of his insulin injections.

Arnold has

successfully controlled his diabetes for twenty-three years.

In

October, 1995, Arnold

representative at UPS about applying

mechanic."

time

for the position of

"cover

The position called for covering the shifts of night-

mechanics

in four

locations:

Laconia, and Twin Mountain, New

an

telephoned a human resources

automotive

mechanic

for

Wells,

Hampshire.

six years,

Maine,

and Dover,

Arnold had worked as

and

had

obtained

an

Arnold met

in

associate degree in automotive technology.

After the

initial

phone conversation,

person with both the human resources representative for UPS, Paul

Tanguay, and with

North

John Kennedy, UPS's

New Hampshire division.

went well.

By

fleet supervisor for

all accounts,

its

both meetings

As a result, Kennedy indicated to Arnold that the job

was his if he wanted it.

The next day,

he wanted the job.

Arnold contacted Kennedy, and

The two agreed on an

-33

said that

October 16, 1995 start

date.

Arnold was informed

required to

fill

pass a driving

out additional

Transportation

Arnold

the

test, have

paperwork, and

(DOT) physical.1

filled out the

driving

shortly thereafter that he

test.

then

facility,

Seacoast

physical,

Arnold, responding to

indicated

that

physician

informed him

he

his fingerprints

submit to

On or about

Redicare, for

was

an

sent to

the

DOT

October 12, 1995,

a local

and passed

health care

physical.

a question from

insulin-dependent

that DOT

taken,

Department of

paperwork, was fingerprinted,

He was

would be

At

the

the physician,

diabetic.

regulations preclude

The

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.

alternate position, as

Tanguay instead offered Arnold

a package "pre-loader," a

provides substantially lower pay.

an

position which

Arnold did not respond to this

alternate job offer.

Arnold instituted this action on October 9, 1996 in the

United States District Court for

ADA, 42 U.S.C.

M.R.S.A.

the District of Maine under the

12101 et seq., and the Maine Human Rights Act, 5

_______

4551 et seq.
________

On March 14, 1997,

after discovery had

been completed, UPS filed a motion for summary judgment.

5, 1997, Magistrate

Decision, ruling

Judge David Cohen submitted

in favor

____________________

of UPS on

the grounds

On May

his Recommended

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.

-44

Arnold's

diabetes

injections, he

On

May

was

effectively

was not disabled

30, 1997,

the

district

by

insulin

within the meaning of

the ADA.

court

controlled

(Hornby,

Magistrate Judge Cohen's recommendation, and

favor of UPS.

This appeal followed.

J.)

affirmed

entered judgment in

I
I

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

Arnold was

not disabled within

his insulin-dependent

limit one

court

analyzing

diabetic condition

or more of his

addressed

the

Arnold's

the meaning of the

ADA, because

did not

substantially

major life activities.2

The district

question

diabetic

of

substantial

condition

after
_____

limitation

he

took

by

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

Corp. v.
_____

of the statute

Bonjorno, 494
________

Prod. Safety Comm'n

____________________

itself.'"

U.S. 827,

Kaiser Aluminum & Chem.

________________________

835 (1990)

v. GTE Sylvania, Inc.,

___________________

(quoting Consumer
________

447 U.S.

102, 108

____________________

2.

Arnold also sued

interpretation

under the Maine Human Rights

Act.

Because

of the Maine Act has historically "proceeded hand

in hand" with interpretation of the ADA, and because the ADA

"provided

guidance to

statute," Soileau
_______

Maine courts

A.2d 70, 74

interpreting the

v. Guilford of Maine, Inc.,

________________________

(1st Cir. 1997) (citing Winston v.

_______
631

in

12, 14

of the ADA claims,

and failure to make

accommodations to Arnold's disability,

of Arnold's single state-law claim of

reasonable

will very likely

dispose

disability discrimination,

which we leave to the district court on remand.

-55

state

Maine Technical College Sys.,

____________________________

(Me. 1993)), our resolution

alleging unlawful discrimination

105 F.3d

has

(1980)); see
___

F.2d

Telematics Int'l, Inc. v. NEMLC Leasing Corp., 967

_______________________
___________________

703, 706 (1st Cir. 1992).

If the language of a statute "is

plain and admits of no more than one meaning" and "if

within

the constitutional authority of the law-making body which

passed it," then "the duty

"the

the law is

sole function

according to

of

its terms."

470, 485 (1917);

the

of interpretation does not arise" and

courts is

to

enforce the

Caminetti v. United States,

_________
_____________

see also Chevron USA Inc.

________ ________________

statute

242 U.S.

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

Of

(1st Cir.

the

1995).

meaning

of

whole

statute,

Beecham
_______

v. United States,
______________

511

course, we

not

of

focus on

isolated

U.S. 368,

372

"the plain

sentences."

(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

look

into a

district court is

statute's

legislative

correct that we

history

if

the

need not

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

least in the

to

countervailing

legislative history."),

absence of a "clearly expressed

-66

at

legislative intent

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

however, we are obliged to turn

unambiguously

clear,

to other sources to discern

the

important source, of course, is

the

legislature's meaning.

One

legislative

If that

history.

is not

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

leave some room

court defers

to

language and

legislative history

still

for uncertainty about the statute's meaning, the

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,
__________
overridden

414

U.S.

literal language

undermined Congress'
3,

8 (1st

453,

aim."

458

(1974).

where it

appeared

United States v.
_____________

Cir.), cert. denied,

____________

Thus,

117 S. Ct.

"[w]e

have

inadvertent and

Estrella, 104 F.3d

________

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

in favor of one which

meaning of a statute

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).

_____
_________

-77

In the instant case, the statutory language is far from

clear,

particularly with respect to the

key question in dispute

here:

should

individual

a court,

with

condition or

in

determining whether

a disability,"

his

consider his

condition after

treatment

Arnold is

"an

untreated medical
_________

with

ameliorating

medications?

The

ADA

protects

qualified

individual

with

disability from discrimination in employment, among other things.

42 U.S.C.

mean

12112(a) (1994).

"(A) a

limits

one

individual;

regarded

(1994).

order to

physical or

or

more

(B) a

of

mental

the

record of

as having such

An

The statute defines "disability" to

major

such an

life

under the

activities

42

one of these

ADA.

substantially

impairment; or

an impairment."

individual must meet

be covered

impairment that

If an

U.S.C.

of

[an]

(C) being

12102(2)

three prongs

individual is

in

not

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

does not protect that person

of his disability, and we

issue to

against discrimination on the basis

need not proceed beyond this threshold

determine either

whether any

adverse action

taken based upon the person's disability or whether

has been

the employer

should have reasonably accommodated that disability.

The

statute

does

"impairment," "substantially

all of

the

which could have more

statute

does not

not

itself

define

the

terms

limits," or "major

life activity,"

than one meaning.

In particular,

indicate whether

medications, prosthetic

devices, or other ameliorative treatments should be considered by

-88

court in

impairment

major

life

determining whether

and whether

activity.

an individual

such impairment

"The

'impairment plus treatment'

statute

suffers from

substantially limits

certainly

or 'impairment

Supp. 1420,

not

after treatment'

'treated impairment'; it just says 'impairment.'"

of Sioux City, 950 F.

______________

does

an

say

or

Sicard v. City
______
____

1436 (N.D. Iowa

1996).

reasonable person could interpret the plain statutory language to

require

an

evaluation

either

before

or

after

ameliorative

treatment.

If

or phrase,

Congress has not expressly defined a statutory term

a court should

with its ordinary

508 U.S.

"normally construe

or natural meaning."

Smith
_____

223, 228 (1993); see Telematics, 967

___ __________

it in

accordance

v. United States,
_____________

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

UPS argues

that

within the meaning of the ADA.

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

this

formulation begs

whether the ADA's

might not

impairment

limits means

the

substantially limits."

question.

reference to an

substantially limit

The

ambiguous issue

is

"impairment" (which might

or

a major life

without treatment or

But

activity) means

an impairment

an

after treatment.

-99

The

word

"impairment"

could

conceivably

be

read

to

mean

"impairment

after

ameliorative

court

the

"impairment that

of

condition

is

treated

with

therapy," which is essentially the way the district

interpreted

absence

underlying

it.

Or

the word

results from

any ameliorative

could

the underlying

treatment,"

Justice Department have read it.

be

read

to mean

condition in

as the

EEOC

the

and the

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

diabetes

mellitus

protected

by

'substantially

the

--

his

underlying

constitutes

ADA.

limits' may be

an

Similarly,

medical condition

"impairment"

that

"[a]lthough

the

unambiguous in and

--

is

term

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.

the explicit language

the

ADA's

Congress

legislative

intended the

and the illustrative examples

history make

analysis of

-1010

it

abundantly

an "impairment"

Both

included in

clear that

and of

the

question

to be

whether it "substantially limits a major life activity"

made on the basis

condition,

without

medication,

example,

of the underlying (physical

considering

prostheses,

or

the

other

ameliorative

mitigating

or mental)

effects

measures.

of

For

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,

or

reasonable

accommodations,

substantial limitation."

(1989),

would

such as auxiliary

result

in

aids

less-than-

H.R. Rep. No. 101-485, pt.

III, at 28

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

____________

Report);

see
___

H.R. Rep.

No.

101-485,

pt.

II, at

reprinted in 1990 U.S.C.C.A.N.

_____________

303, 334 ("House

(The determination

individual

within

the

regard

to the

reasonable

whether

scope of

an

ADA coverage

availability

of

mitigating

(1990),

Labor Report")

has

"should be

52

"disability"

assessed without

measures,

such

as

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

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

Indeed,

Congress

spoke

condition at issue in this case:

directly

to

the

medical

"persons with impairments, such

as

epilepsy or diabetes, which

substantially limit a major life

activity," are considered to have an actual

the

effects of

House Labor

the impairment

Report at

are

52; see
___

includes . .

controlled by

id. at
___

possible to list all impairments

___

disability, "even if

51 (Although

medication."

it is

not

covered by the ADA, "[t]he term

. diabetes."); Senate Report

-1111

at 22 (same).

These

reports make it abundantly clear

statutory

definition

of

substantially limits [a]

underlying

medical

without regard

disability

Senate Report

--

an

"impairment

condition, in

to whether

this case

"the effects

of

Arnold's diabetes,

the impairment

are

House Labor Report at 52.4

district court focused on another statement in the

(contained in the

Report's discussion of

but not contained in the House Reports):

Another important goal of

the third prong of

the definition is to ensure that persons with

medical
and

that

major life activit[y]" -- refers to the

controlled by medication."

The

that Congress intended that the

conditions that

that therefore

do

major life activities,

against

are under

control,

not currently

limit

are not discriminated

on

the

basis

of

their

medical

conditions.

For

example, individuals

with

prong 3

controlled
denied
Such

diabetes

jobs for
denials

or epilepsy

which

are

the

are

they are
result

often

qualified.
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

history,

and the attendant

view such

skepticism with which

documents," the district

legislative

courts should

court relies

on the

above-

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

interpretation

does not

construction of the

the test of

flow

statute."

rationally

from

Arnold, slip op.

______

Chevron, 467 U.S. at

_______

843).

"permissible

at 13 (applying

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."

___

-1212

conclusion despite its

recognition that "the need

to the agency's view 'looms large.'"

F.3d

at

Report's

17).

The

allusion to

district

court

for deference

Id. (quoting Strickland, 48

___
__________

reasoned that

uncontrolled diabetes

in

the

Senate

the context

of

prong

three

demonstrates

that

uncontrolled medical conditions

the definition

Congress

did

to be included

of "disability."

not

intend

in prong one

But the district court

of

has no

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

discussion of prong one, that

_________

disability

availability

should

of

accommodations or

does

the court

be

the question "whether a person has

assessed

mitigating

measures,

auxiliary aids."

explain why

without

such

regard

as

Senate Report

both House

Reports and

to

the

reasonable

at 23.

Nor

the Senate

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

without consideration of
_______

only

mitigating measures), especially

since

the Senate Report made the supposedly significant statement

limited to prong three.

Most significantly, this

Senate Report

is not

"prong three" passage in

actually inconsistent

with that

prior language (identical with that of the House

that courts

should focus

on the

could

have a

"disability"

impairment that substantially

under

both
____

prong

report's

Report) stating

untreated impairments:

passages can be easily squared by recognizing

the

these

that an individual

one

limits a major life

(having

an

activity) and
___

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

time;

one does

not preclude

the other.

-1313

The ADA

protects any

individual with

a "disability" against both discrimination based

____

on prong one and discrimination based on prong three.

D
D

"'As in all

is

to

cases of statutory construction,

interpret the

words

of [the

purposes Congress sought to serve.'"

statute] in

light

our task

of the

Dickerson, 460 U.S. at 118

_________

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

_______
_________
___

Caron, 77
_____

must

F.3d at

be understood

3-4.

in

Thus,

light

"[t]he definition

of

congressional

of disability

objectives

in

enacting the ADA."

Soileau v.
_______

12, 14 (1st

Cir. 1997).

the

require evaluation

ADA to

diabetes

only

after
_____

Guilford of Maine, Inc., 105 F.3d

_______________________

The district

of an

ameliorative

court's interpretation of

impairment

treatment

like Arnold's

such

as

insulin

medication is inconsistent with those congressional objectives.

The ADA is a "broad remedial statute."

Parcel Serv.,
____________

"familiar

128 F.3d

canon

of

legislation," such as

effectuate its

336 (1967).

408,

414 (6th

statutory

1997).

construction

the ADA, "should

purposes."

Cir.

Penny v. United
_____
______

Tcherepnin
__________

that

It is

remedial

be construed broadly

v. Knight, 389
______

to

U.S. 332,

The fundamental purpose of the ADA is "to provide a

clear and comprehensive

national mandate for the

elimination of

discrimination against individuals with disabilities."

12101(b)(1)

discrimination,

(1994).

In

the thrust

protect individuals who

the

of this

context

purpose

of

but who are in fact

___

employment

is essentially

have an underlying medical

other limiting impairment,

42 U.S.C.

to

condition or

capable of doing

-1414

the

job, with

or without

the help

of medications,

prosthetic

devices, or

other ameliorative measures,

reasonable accommodation by the employer.

and with or

without a

See, e.g., 42 U.S.C.

_________

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

with restrictions and

limitations, [and] subjected to

of purposeful unequal treatment,

that are

from

beyond the

stereotypic

contribute to,

from

control of such

assumptions

individual ability

of such

society").5

discriminatory

erroneously believe

. . . based

actions

not

individuals to

by

resulting

indicative

of

participate in,

protects such

some

the individual's

on characteristics

individuals and

truly

The ADA

a history

employers

the

and

individuals

who

medical condition

might

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.

Arline, 480 U.S.

______

Cf. School Bd. of Nassau County v.

___ ___________________________

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.

________ ___

to

isolate

12101(a)(2) ("historically, society has tended

and segregate

individuals

despite some improvements, such

individuals
pervasive

with disabilities
social

areas

as

discrimination,
discriminatory

continue

to

be

against

serious

and

12101(a)(3)

("discrimination

with disabilities persists

in such critical

employment");

disabilities

disabilities, and,

forms of discrimination

problem");

against individuals

with

12101(a)(5)

continually
including
effects

of

encounter

("individuals
various

outright intentional
.

. .

exclusionary

forms
exclusion,

with

of

the

qualification

standards and criteria, segregation, and relegation to lesser . .

. jobs").

-1515

Conceptually, it seems

more consistent with Congress's

broad remedial goals in enacting the

sense,

to interpret

broadly, so

against

the

the words

Act's coverage

discrimination.

"disability," the concerns

Even

ADA, and it also makes more

"individual

with a

protects more

with

such

disability"

types of

broad

and interests of employers

people

view

of

are still

amply protected through the Act's other provisions.

the

individual with a

disability who seeks a

For example,

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

reasonableness

those

of that

job

functions,

accommodation,

we

will

including its

other burdens on the employer's business operations.

12111(9),

(10);

see also
_________

definition

of

'handicapped

Arline,
______

examine

480

U.S.

individual'

at

[in

cost

the

and

42 U.S.C.

285

504

("[T]he

of

the

Rehabilitation Act] is broad, but

only those individuals who are

both

qualified

handicapped

relief.").6

and
___

otherwise

are

eligible

for

The

distinction:

structure

the

of

the

Act

term "disability"

general section applicable to all

supports

is defined

this conceptual

in

12102, a

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

guidance in interpreting

504 of
the ADA.

the Rehabilitation Act

EEOC v. Amego, Inc., 110 F.3d

____
___________

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

-1616

for

12117(b)).

"qualified"

and "reasonable

accommodation"

are

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

subchapter

defines

and

limits

responsibilities of employers

employment), balancing the

the

purposes

of

the

Act,

the

defined

This particular

substantive

and employees

rights

and

(or applicants

for

interests of each, in

within the

in

furtherance of

particular

context

of

employment.

UPS argues that,

of

"individual with

definition

were we to accept

disability"

without considering

unacceptably

the protective

(i.e.,

a broad definition

if we

examine

ameliorative measures),

the

then an

large percentage of the population will fall within

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

12101(a)(1).

It

as a

whole

is

growing older."

thus appears that Congress

but actually intended

42

U.S.C.

not only considered

that the ADA's protections

sweep broadly,

covering a significant portion of the American populace.

One example that demonstrates how UPS's

of

the

remedial

brief.

statute would

purposes was

be

inconsistent

pointed out

by

with

the

the EEOC

interpretation

Act's

in its

broad

amicus

Under UPS's interpretation, someone who could not afford

treatment for his

impairment would be protected by

the ADA from

discrimination in

hiring.

and obtained

But once he

was hired

treatment under

the employer's

health plan,

he would

lose the

-1717

ADA's protection because

employer

could then

without fear of

he would no longer be

fire him

on

the basis

"disabled."

of his

The

disability

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

that would not mean

prong

one.

"persons

the same conduct is

Indeed,

the

House

with impairments, such

Report

three,

not also covered

specifically

as epilepsy or

under

mentions

diabetes, which
________

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

"covered

under the first prong of

_____

even

the

if

medication."

Report

effects

of

the

the definition of disability,

impairment

House Report

at 52

There is

no reason

at 22.

are

controlled

(emphasis added);

by

see Senate
___

this employee could

not be

protected under two prongs simultaneously.

In light of the broad

remedial purposes of

128 F.3d

the ADA,

see Penny,
___ _____

believe Congress intended the Act

under prong one.

at 414,

we

to prohibit such a termination

Similarly,

plaintiff

UPS's

reading

would treat

like Arnold (who takes his

differently

medications and thus would

not be

protected by the ADA,

according to UPS) and

who is

also

suffering

condition

as

medications.

diabetic (i.e.,

Arnold)

but

who

The latter plaintiff

according to UPS's

cannot

from the

afford

a plaintiff

same

to

medical

take

his

would be protected by the ADA

analysis, but Arnold

would not.

think Congress intended such an anomalous result.

-1818

We do

not

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

ADA was designed to protect.

for his inability to get

prevented

He would have been hired by UPS but

a commercial vehicle license, which was

only because he

had diabetes (the

underlying medical

condition, without

taking into account

But Arnold alleges

that, with treatment, he can

despite

his impairment if

ameliorative treatment).

UPS will reasonably

perform the job

accommodate him.

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

court to

determine.

Yet under UPS's

interpretation of the ADA, a

and the

district court's

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

the

to

the

merits

of

alleged

discrimination,

of

the

"qualified individual" requirement,or of reasonableaccommodation.

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

disease

with

its

treatment,"

Chocolate Co., No.

______________

1997),

it

96-1057, slip

conflates

determination

as to

issue;

protected

by the ADA

at 15.

Once

two

separate

whether

threshold

F.3d

Matczak
_______

if

one

is

v.

op. at

Frankford Candy &

___________________

6 (3d

parts

of

an individual

not disabled,

the

Nov. 18,

ADA.

The

is "disabled"

then

against discrimination.

a person is

Cir.

determined to be

one

is

is a

not

See Soileau, 105

___ _______

covered by the

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

in employment

long

as

(inter alia)

she is

qualified

on the basis

for

the

of her

job,

with

disability, as

or

without

-1919

reasonable accommodation.

this

case,

plaintiff

Were

we to

would

have

"substantially limited" even with

adopt UPS's

to

prove

position in

that

she

is

ameliorative medication -- and

therefore

possibly unable

elements of

protective

employer

the

job

could avoid

plaintiff

(with

ameliorative

perform

the job -- in order just

umbrella.

applicant an

to

from

Thus,

under

of

the

the

ADA's

without

medication.

UPS's

coverage,

interpretation, the

by excluding

without

giving

that she is qualified

reasonable

See
___

essential

to be covered by the ADA's

liability for discrimination

opportunity to show

or

some

Robert

for the

accommodation),

L.

Burgdorf,

the

Jr.,

with

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

will have every opportunity to

to perform

one or more

Indeed, the

qualified for the job.

any

accommodations

functions of the

Arnold to demonstrate that

Arnold

needs

articulated concerns

stage where

job.

he is

UPS will also be free to try to show that

would

be

too

expensive

otherwise too burdensome to be considered "reasonable."

of UPS's

UPS

demonstrate that Arnold is unable

of the essential

burden will be on

accommodation.

the court is

are applicable

at the

determining whether the

-2020

or

But none

threshold

individual is

disabled and therefore

Thus,

contrary

to

"disability" is most

protected by the ADA in

UPS's

reading,

consistent with the

statute if Arnold's impairment and

their

untreated

the

state,

without

ADA's

the first place.

definition

broad purposes of

its effects are evaluated

the

ameliorative

effect

of

the

in

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

condition

without

based

considering the

insulin medication.

on

his underlying

ameliorative effects

The district court erred in

medical

of his

holding to the

contrary.

E
E

Even if the legislative history were

point, the

court

also

erred

in

failing

to

not clear on this

afford

adequate

consideration to the similar interpretation set forth by the EEOC

____________________

7.

UPS's

interpretation

could

antithetical to its expressed

to take

such

disability

concerns

is able

very

produce

concerns and to the

into account.

to use

well

medical

That a

results

Act's attempt
person

knowledge or

with

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,

accommodation from his

in practice, rarely require

any sort of

employer; but his achievement

should not

leave

him

subject

to discrimination

disability.

He should not be denied

because

has

he

independently

successfully brought his

based

on

his underlying

the protections of the ADA

taken

the

initiative

diabetes under control.

It

and

is hard to

imagine that Congress wished to provide protection to workers who

leave

it to their employer

to deny protection

to accommodate their impairments but

to workers who act

independently to overcome

their disabilities, thereby creating a disincentive to self-help.

-2121

in its

guidelines.

the EEOC to

The

ADA authorizes -- indeed

"issue regulations in an accessible

"requires" --

format to carry

out"

the

Act.

authority,

which as

the

42 U.S.C.

EEOC has

12116 (1994).

promulgated

Pursuant

regulations,

to that

attached to

an appendix it has compiled guidelines for interpreting

the statute.

of whether

According to those guidelines,

an individual

the determinations

has an "impairment"

and whether

that

impairment "substantially limits a major life activity" should be

made

"on a

measures

EEOC

case by

basis, without

regard to

mitigating

such as medicines, or assistive or prosthetic devices."

Interpretive

1630.2(h)

(1997)

(substantially

insulin would

because

case

Guidance,

(physical

limits)

(noting

lapse into a

the individual

29

C.F.R.

impairment)

that

"a

coma would be

cannot

Part

perform

1630,

App.

and

1630.2(j)

diabetic

who without

substantially limited

major

life

activities

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

Labor Report at 52)).

We recognize that the EEOC

not

to

interpretive guidelines are

controlling in the way that regulations promulgated pursuant

the

Administrative

controlling.8

Procedure

Nevertheless, such

Act,

U.S.C.

552,

interpretive guidelines

are

"'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
statute
agency's

by

the

agency

charged

interpretation is

statute's
permissible

language and
construction

defer to an interpretation of the

with its

enforcement

"a permissible construction"

legislative history.
is

one

that

is

Id. at
___

if

the

of the
843.

not

"arbitrary,

capricious, or manifestly contrary to the statute."

Id. at 844.
___

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

-2222

constitute a

body of experience

and informed judgment

courts and litigants may properly resort for guidance.'"

to which

Meritor
_______

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

Elec. Co.
__________

v.

Gilbert,
_______

429

U.S.

141-42 (1976));

Cyanamid Plastics, Inc., 70 F.3d 667, 673

_______________________

Grenier
_______

(1st Cir. 1995).

v.

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

statute.

long as

Reno
____

v.

it is a

Koray, 515
_____

permissible construction

U.S.

Commonwealth of Mass. v. F.D.I.C.,

______________________
________

1996)

(holding

that

even

50, 61

of the

(1995);

see also
_________

102 F.3d 615, 621

(1st Cir.

something

as

informal

as

"[a]n

established administrative practice interpreting a statute" or "a

new policy . . . announced in a

[agency's] staff attorneys at

deference,"

deference,"

"not

although

. . . presentation by one of the

a conference" "may be entitled

"something

less

than

full

to

Chevron
_______

even if the administrative practice or new policy is

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

broad remedial purposes.

this

court has

See supra at
___ _____

previously "looked

to"

history and

Parts C and D.

the same

Moreover,

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."
at 843 n.11 (citing FEC
___

Id.
___

v. Democratic Senatorial Campaign Comm.,

____________________________________

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

-2323

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.,

________________________

addition,

the

bolstered by a

37 F.3d 12,

reasonableness of

the

16 (1st Cir.

EEOC's

1994).

In

interpretation is

virtually identical interpretation by

the United

States Department of Justice, which is charged with enforcing the

ADA's

part of

prohibition of discrimination

state and

Part 35, App. A

based on disability

local governmental entities.

See
___

on the

28 C.F.R.

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

"substantially limits" out of the statute.

rejected this argument

F.3d 516, 521

(11th Cir. 1996),

essentially begs the

statutory

word

impairments.

in Harris v.
______

question.

"impairment"

sentence,

we.

UPS's

The key question

to

interpretive

requirement

guideline

____________________

is whether the

treated

or

untreated

requirement pertains to

regardless of whether that impairment

that

argument

the first part of the definitional

the condition in its treated or

reading

H & W Contracting Co., 102

______________________

The "substantially limits"

the impairment referred to in

The Eleventh Circuit

and so do

refers

the words

out

helps

is read to mean

untreated state.

of

the

to clarify

statute,

an

Thus, far from

the

EEOC's

ambiguity

in the

9.

UPS itself

relies on

a different section

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

making its

argument that the

of the

same EEOC

1630.15(e), in

district court decision

should be

affirmed for a different reason than the court gave.

-2424

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

proper

relation

to

"substantially limits"

the

impairment.

as referring to the

The

guideline

reads

untreated impairment

rather than the treated impairment.

decide whether

any

major

the untreated

life

activity

constitutes a "disability"

is a

Id.
___

permissible reading

Surely,

approach.

The trier of fact must still

impairment "substantially

before

the

within the meaning of the

of the

ambiguous statutory

nothing in the language

Indeed,

untreated

as noted

supra,
_____

of the Act rules

at least

limits"

impairment

ADA.

This

language.

out this

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.

______

claim

is also

meritless.

Nowhere

does the

This

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

emphasize

treated

the contrary,

the

requirement

individually.

(observing that

C.F.R.

Part

"impairment"

case

that

regulations and

every

person's

Appendix to Part

guidelines

situation

be

1630, "Background"

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

1630,

App.

1630.2(j)

(Determinations

of

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

by case basis.");

for particular

See
___

the EEOC

id. ("Some impairments

___

individuals but

not for

-2525

may be disabling

others.").

Again, the

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

analytical

substantive

EEOC's

argument

process or

simply because, when

the

between

our

one

hand, and

the

results from

that

process.

The

does not

become a

methodology,

conclusion

reading of

blurs

that

the statute

distinction

on the

an individualized evaluation is

per se rule
_______

applied to

individuals who have

will almost always

a particular medical condition,

turn out to be

the same.

under UPS's reading

of the statute, virtually

will

found

probably

be

to

qualify

as

For

the result

example, even

all quadriplegics

"individuals

with

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

are

applying

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

determining

whether

measures

an

should

impairment

individual's major life activities.

not

be

considered

substantially

limits

in

an

See Matczak, slip op. at 6___ _______

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

denied,
______

118

(reviewing

Interpretive

S. Ct.

693

legislative

Guidance

statute); Holihan
_______

(1998);

history

is

Harris,
______

102 F.3d

and concluding

permissible

that

construction

v. Lucky Stores, Inc., 87 F.3d 362,

___________________

-2626

at

520-21

the

of

EEOC

the

366 (9th

Cir.

1996),

cert. denied,
____________

117

S.

Ct.

1349 (1997);

Roth
____

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

___________________

Sutton v.
______

Gilday
______

United Air Lines, 130 F.3d

________________

v. Mecosta County, 124

_______________

F.3d

(Kennedy, J., concurring in part

v.

But see
_______

893, 902 (10th Cir. 1997);

760, 767

(6th Cir.

1997)

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

really

argues

follow the

in its

EEOC

brief

that these

interpretation of

the

courts

did not

law but

rather

"merely acknowledged the existence of the EEOC guidelines."

UPS

is simply

wrong.

"acknowledge"

Matczak, Doane, Roth, and Harris do not merely

_______ _____ ____
______

the "existence" of

principle of law

whether an individual is

therefore

protected by the

cite

EEOC guidelines

principle.

They state a

-- that ameliorative medications are

considered in determining

the

the guidelines.

one

See Matczak, slip op. at

___ _______

(stating that "analysis

disabled and

ADA from discrimination

as

ground

not to be

-- and then

in support

of

this

6-7; Doane, 115 F.3d at 627

_____

of whether [plaintiff] is

disabled does

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

____

at

1454; Harris,
______

interpretation

is

102 F.3d

"firmly

at 521

rooted

(concluding that

in

the

ADA's

the EEOC's

legislative

history").

UPS is correct that

the Harris court, in

______

reaching the

same conclusion,

guidelines,

applied full

rather

than

Chevron deference
_______

the lesser

degree

of

to the

EEOC's

deference that

-2727

Meritor requires for

_______

interpretive rules that have

the full APA promulgation process.

see also

supra at

22.

But

not undergone

See Meritor, 477 U.S. at 65;

___ _______

the conclusion

in Harris

remains

________

_____

______

valid, including its determination that the EEOC's interpretation

of the ADA

is a permissible one.

to the lesser

to

Meritor
_______

degree of deference that we

--

giving

interpretation.

interpretation

history,

UPS has no persuasive rebuttal

some
____

Like the

to

be

as outlined

consideration

Harris
______

consistent

supra,
_____

have applied pursuant

court,

with

and with

to

the

we find

the

EEOC's

the

ADA's

EEOC's

legislative

the overall

protective

purpose of the ADA; the interpretation is therefore permissible.

We

from

conclude, therefore, that

discrimination if he

medical

condition,

limitations

are

is disabled

without

ameliorated

regard

to

through

the ADA

protects Arnold

based on

his underlying

whether

some

medication

of

or

his

other

treatment.

This holding is based on the

facts of this case and

is

to

here,

limited

mellitus.

the condition

presented

namely diabetes

We venture no opinion as to whether we would reach the

same conclusion if

presented.10

other medical conditions or

other facts were

We conclude in this case that the EEOC's guidelines

are worthy of

consideration and that

Arnold's diabetes, in

its

____________________

10.
of

For example, we
a

myopic

individual

eyeglasses.
remedy,

might reach a different result

The

whose

vision

availability of

such

is
a

in the case

correctable

with

simple, inexpensive

that can provide assured, total and relatively permanent

control of all
the kind of

symptoms, would seem

to make correctable

"minor, trivial impairment[]," Senate

Report at 23,

that would not be considered a disability under the ADA.

-2828

myopia

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

opinion.

remanded for
remanded
________

further proceedings

consistent with

Costs on appeal are awarded to Arnold.

this

____________________

11.

Arnold

argues that,

amelioration,

even looking

at

his condition

after

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.

-2929