USCA1 Opinion
United States Court of Appeals
For the First Circuit
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No. 97-1781
GLEN ARNOLD,
Plaintiff, Appellant,
v.
UNITED PARCEL SERVICE, INC.,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Aldrich and Bownes, Senior Circuit Judges.
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Peter L. Thompson with whom Law Offices of Ronald Coles were on
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brief for appellant.
Barbara L. Sloan, with whom C. Gregory Stewart, General Counsel,
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J. Ray Terry, Jr., Deputy General Counsel, Gwendolyn Young Reams,
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Associate General Counsel, and Vincent J. Blackwood, Assistant General
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Counsel, were on brief for Equal Employment Opportunity Commission,
amicus curiae.
Charles W. March and Sunenblick, Reben, Benjamin & March on brief
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for American Diabetes Association, amicus curiae.
S. Mason Pratt, Jr., with whom Catherine R. Connors, Brent G.T.
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Geraty, and Pierce, Atwood, Scribner, Allen, Smith & Lancaster were on
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brief for appellee.
Loretta M. Smith on brief for New England Legal Foundation,
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amicus curiae.
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February 20, 1998
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BOWNES, Senior Circuit Judge. Glen Arnold brought this
BOWNES, Senior Circuit Judge.
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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
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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
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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
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States Dep't of Agriculture, 102 F.3d 1273, 1284 (1st Cir. 1996),
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cert. denied, 117 S. Ct. 2510 (1997). Plaintiff-Appellant Glen
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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
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M.R.S.A. 4551 et seq. On March 14, 1997, after discovery had
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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
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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
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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.
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Corp. v. Bonjorno, 494 U.S. 827, 835 (1990) (quoting Consumer
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Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108
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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
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(1st Cir. 1997) (citing Winston v. Maine Technical College Sys.,
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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
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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.
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470, 485 (1917); see also Chevron USA Inc. v. Natural Resources
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Defense Council, Inc., 467 U.S. 837, 842-43 (1984). The plain
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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
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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
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interpret the statute's words "'in light of the purposes Congress
sought to serve,'" Dickerson v. New Banner Inst., Inc., 460 U.S.
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103, 118 (1983) (quoting Chapman v. Houston Welfare Rights Org.,
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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
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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
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marks and citation omitted); United States v. Caron, 77 F.3d 1, 4
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(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
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12, 17 (1st Cir. 1995) (applying the test of Chevron, 467 U.S. at
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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.;
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see Chevron, 467 U.S. at 843.
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B
B
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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
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overridden literal language where it appeared inadvertent and
undermined Congress' aim." United States v. Estrella, 104 F.3d
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3, 8 (1st Cir.), cert. denied, 117 S. Ct. 2494 (1997) (citing
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United States v. Indelicato, 97 F.3d 627, 629-30 (1st Cir. 1996),
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cert. denied, 117 S. Ct. 1013 (1997)). Circuit courts have even
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held that a court should reject the literal meaning of a statute
in favor of one which furthers congressional intent. See Merz v.
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Secretary of Health & Human Servs., 969 F.2d 201, 205-7 (6th Cir.
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1992); Sciarotta v. Bowen, 837 F.2d 135, 138-39 (3d Cir. 1988);
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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
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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
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of Sioux City, 950 F. Supp. 1420, 1436 (N.D. Iowa 1996). A
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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,
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508 U.S. 223, 228 (1993); see Telematics, 967 F.2d at 706. But
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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
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(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
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Report); see H.R. Rep. No. 101-485, pt. II, at 52 (1990),
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reprinted in 1990 U.S.C.C.A.N. 303, 334 ("House Labor Report")
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(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
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possible to list all impairments covered by the ADA, "[t]he term
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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.
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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
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the test of Chevron, 467 U.S. at 843). The court reached this
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4. Both the House Labor Report, at 51-52, and the Senate Report,
at 22, specifically list diabetes as an impairment under prong
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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
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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
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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
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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
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impairment that substantially limits a major life activity) and
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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
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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
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(quoting Chapman, 441 U.S. at 608) (alteration in Dickerson); see
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Caron, 77 F.3d at 3-4. Thus, "[t]he definition of disability
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must be understood in light of congressional objectives in
enacting the ADA." Soileau v. Guilford of Maine, Inc., 105 F.3d
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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
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medication is inconsistent with those congressional objectives.
The ADA is a "broad remedial statute." Penny v. United
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Parcel Serv., 128 F.3d 408, 414 (6th Cir. 1997). It is a
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"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,
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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.
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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.
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Arline, 480 U.S. 273, 284 & n.13 (1987) (discussing the purpose
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of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. 794
(1994)).
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5. See also id. 12101(a)(2) ("historically, society has tended
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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
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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
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6. We use case law under 504 of the Rehabilitation Act for
guidance in interpreting the ADA. EEOC v. Amego, Inc., 110 F.3d
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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,
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even if the effects of the impairment are controlled by
medication." House Report at 52 (emphasis added); see Senate
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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
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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 &
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Chocolate Co., No. 96-1057, slip op. at 6 (3d Cir. Nov. 18,
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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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19
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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20
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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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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22
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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24
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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29
