
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 on            __________________            ____________________________        brief for appellant.            Barbara L. Sloan,  with whom C. Gregory Stewart, General  Counsel,            ________________             __________________        J. Ray  Terry,  Jr., Deputy  General Counsel,  Gwendolyn Young  Reams,        ___________________                            ______________________        Associate General Counsel, and Vincent J. Blackwood, Assistant General                                       ____________________        Counsel,  were on brief  for Equal Employment  Opportunity Commission,        amicus curiae.            Charles W. March and Sunenblick, Reben, Benjamin & March on  brief            ________________     ___________________________________        for American Diabetes Association, amicus curiae.            S.  Mason Pratt, Jr., with whom  Catherine  R. Connors, Brent G.T.            ____________________             _____________________  __________        Geraty, and Pierce, Atwood, Scribner, Allen, Smith & Lancaster were on        ______      __________________________________________________        brief for appellee.            Loretta  M.  Smith  on brief  for  New  England Legal  Foundation,            __________________        amicus curiae.                                 ____________________                                  February 20, 1998                                 ____________________                    BOWNES, Senior Circuit Judge.  Glen Arnold brought this                    BOWNES, Senior Circuit Judge.                            ____________________          action against United  Parcel Service, Inc. (UPS),  alleging that          UPS  refused  to hire  him  because of  his  disability, diabetes          mellitus, in  violation of  the Americans  with Disabilities  Act          (ADA), 42 U.S.C.    12101  et seq.   The  district court  granted                                     ______          summary judgment to UPS, on the ground that Arnold had not  shown          that  he had a disability and therefore  was not protected by the          ADA's antidiscrimination provision.  In making its determination,          the  court considered  Arnold's diabetes  in  its treated  state,          after taking into account the ameliorative effects of his insulin          medication.   Arnold appeals, arguing  that such an  analysis was          legally erroneous, inconsistent  with the ADA and with the EEOC's          interpretive regulations.   He also argues that the  facts he has          introduced prove that he satisfies the statutory definition of an          "individual  with  a  disability," and  that  UPS  has failed  to          demonstrate that it is  entitled to judgment as a matter  of law.          UPS  argues  that  the  district  court's  analysis  of  Arnold's          disability   was   proper,   including   its   consideration   of          ameliorative  medication.  As an alternative ground for upholding          the   grant  of  summary  judgment,  UPS  contends  that  federal          regulations  required  it   to  deny  Arnold's   application  for          employment, and UPS  is thereby entitled to judgment  as a matter          of law.  We reverse and remand.                                        Facts                                        Facts                                        _____                    Because this  is  an appeal  from  a grant  of  summary          judgment in  favor of  defendant UPS, we  state the facts  in the                                         -2-                                          2          light most favorable to the  nonmovant, Arnold.  Dubois v. United                                                           ______    ______          States Dep't of Agriculture, 102 F.3d 1273, 1284 (1st Cir. 1996),          ___________________________          cert.  denied, 117 S. Ct.  2510 (1997).  Plaintiff-Appellant Glen          _____________          Arnold has Type I insulin-dependent diabetes mellitus.   As such,          he is required to monitor his blood glucose levels throughout the          day, and give  himself injections of insulin two  to four times a          day.   He is also required to  pay constant attention to possible          signs of hypoglycemia,  and to follow a strict  diet and exercise          regimen to control the disease.  His physician states that Arnold          would die in  the absence of his insulin injections.   Arnold has          successfully controlled his diabetes for twenty-three years.                    In  October, 1995, Arnold  telephoned a human resources          representative at UPS about applying  for the position of  "cover          mechanic."  The position called for covering the shifts of night-          time  mechanics  in four  locations:   Wells,  Maine,  and Dover,          Laconia, and Twin Mountain, New  Hampshire.  Arnold had worked as          an  automotive  mechanic  for  six years,  and  had  obtained  an          associate degree in automotive technology.                    After the  initial  phone conversation,  Arnold met  in          person with both the human resources representative for UPS, Paul          Tanguay, and with  John Kennedy, UPS's  fleet supervisor for  its          North  New Hampshire division.   By  all accounts,  both meetings          went well.  As a result, Kennedy indicated to Arnold that the job          was his if he wanted it.                    The next day,  Arnold contacted Kennedy, and  said that          he wanted the job.   The two agreed on an  October 16, 1995 start                                         -3-                                          3          date.   Arnold was informed  shortly thereafter that he  would be          required to  pass a driving  test, have  his fingerprints  taken,          fill  out additional  paperwork, and  submit to  a  Department of          Transportation  (DOT) physical.1   On or about  October 12, 1995,          Arnold  filled out the  paperwork, was fingerprinted,  and passed          the  driving  test.   He was  then  sent to  a local  health care          facility,  Seacoast  Redicare, for  the  DOT  physical.   At  the          physical,  Arnold, responding to  a question from  the physician,          indicated  that  he  was  an  insulin-dependent  diabetic.    The          physician  informed him  that DOT  regulations preclude  insulin-          dependent diabetics from obtaining the DOT certification required          to operate commercial motor vehicles.   On return to UPS, Tanguay          informed Arnold that UPS could not hire him because he was unable          to obtain DOT certification.   Tanguay instead offered Arnold  an          alternate position, as  a package "pre-loader," a  position which          provides substantially lower pay.  Arnold did not respond to this          alternate job offer.                    Arnold instituted this action on October 9, 1996 in the          United States District Court for  the District of Maine under the          ADA, 42 U.S.C.   12101 et seq., and the Maine Human Rights Act, 5                                 _______          M.R.S.A.   4551 et  seq.  On March 14, 1997,  after discovery had                          ________          been completed, UPS filed a motion for summary judgment.   On May          5, 1997, Magistrate  Judge David Cohen submitted  his Recommended          Decision, ruling  in favor  of UPS on  the grounds  that, because                                        ____________________          1.  UPS requires all of its mechanics to acquire certification to          operate commercial motor  vehicles as ostensibly mandated  by the          United States Department of Transportation.                                         -4-                                          4          Arnold's   diabetes  was   effectively   controlled  by   insulin          injections, he  was not disabled  within the meaning of  the ADA.          On  May  30, 1997,  the  district  court  (Hornby,  J.)  affirmed          Magistrate Judge Cohen's recommendation, and  entered judgment in          favor of UPS.  This appeal followed.                                          I                                          I                    The district court determined that, as a matter of law,          Arnold was  not disabled within  the meaning of the  ADA, because          his insulin-dependent  diabetic condition  did not  substantially          limit one  or more of his  major life activities.2   The district          court  addressed  the  question  of   substantial  limitation  by          analyzing   Arnold's  diabetic  condition   after  he   took  his                                                      _____          ameliorative medications, rather than analyzing his unameliorated          diabetes.   For the reasons  that follow, we think  this analysis          was erroneous as a matter of law.                                          A                                          A                    The "starting point for interpretation of a statute 'is          the language  of the statute  itself.'"  Kaiser Aluminum  & Chem.                                                   ________________________          Corp. v.  Bonjorno, 494  U.S. 827,  835 (1990)  (quoting Consumer          _____     ________                                       ________          Prod.  Safety Comm'n  v. GTE  Sylvania, Inc.,  447 U.S.  102, 108          ____________________     ___________________                                        ____________________          2.  Arnold also sued  under the Maine Human Rights  Act.  Because          interpretation  of the Maine Act has historically "proceeded hand          in hand" with interpretation of the ADA, and because the ADA  has          "provided  guidance to  Maine courts  in  interpreting the  state          statute," Soileau  v. Guilford  of Maine, Inc.,  105 F.3d  12, 14                    _______     ________________________          (1st Cir. 1997) (citing Winston v.  Maine Technical College Sys.,                                  _______     ____________________________          631  A.2d 70, 74  (Me. 1993)), our resolution  of the ADA claims,          alleging unlawful discrimination  and failure to make  reasonable          accommodations to Arnold's disability,  will very likely  dispose          of Arnold's single state-law claim of  disability discrimination,          which we leave to the district court on remand.                                         -5-                                          5          (1980)); see  Telematics Int'l,  Inc. v. NEMLC Leasing Corp., 967                   ___  _______________________    ___________________          F.2d  703, 706 (1st Cir. 1992).  If the language of a statute "is          plain and admits of no more than one meaning" and "if  the law is          within  the constitutional authority of the law-making body which          passed it," then "the duty  of interpretation does not arise" and          "the  sole function  of  the  courts is  to  enforce the  statute          according to  its terms."   Caminetti v. United States,  242 U.S.                                      _________    _____________          470, 485 (1917);  see also Chevron USA Inc.  v. Natural Resources                            ________ ________________     _________________          Defense Council,  Inc., 467 U.S.  837, 842-43 (1984).   The plain          ______________________          meaning of a statute's text must be given effect "unless it would          produce  an absurd  result or  one  manifestly at  odds with  the          statute's intended effect."  Parisi  by Cooney v. Chater, 69 F.3d                                       _________________    ______          614, 617  (1st Cir.  1995).  Of  course, we  focus on  "the plain          meaning  of  the  whole  statute,  not  of  isolated  sentences."          Beecham  v. United  States,  511  U.S. 368,  372  (1994), and  we          _______     ______________          interpret the statute's words "'in light of the purposes Congress          sought to serve,'" Dickerson v.  New Banner Inst., Inc., 460 U.S.                             _________     ______________________          103, 118 (1983) (quoting Chapman v. Houston Welfare Rights  Org.,                                   _______    ____________________________          441 U.S. 600, 608 (1979)).                    Thus, the  district court is  correct that we  need not          look  into a  statute's  legislative  history  if  the  statutory          language is  plain, see Summit  Inv. & Dev.  Corp. v.  Leroux, 69                              ___ __________________________     ______          F.3d 608, 610 (1st Cir. 1995) ("Plain statutory language does not          prompt  recourse  to  countervailing  legislative history."),  at          least in the  absence of a "clearly expressed  legislative intent                                         -6-                                          6          to the contrary,"3 Dickerson, 460 U.S. at 110 (internal quotation                             _________          marks and citation omitted); United States v. Caron, 77 F.3d 1, 4                                       _____________    _____          (1st  Cir.  1996).   If  the  text  is not  unambiguously  clear,          however, we are obliged to turn  to other sources to discern  the          legislature's meaning.  One  important source, of course, is  the          legislative  history.   If that  history  reveals an  unequivocal          answer, we do not look to the interpretation that may be given to          the  statute  by   the  agency  charged  with   its  enforcement.          Strickland v. Commissioner, Maine Dep't of Human Servs., 48  F.3d          __________    _________________________________________          12, 17 (1st Cir. 1995) (applying the test of Chevron, 467 U.S. at                                                       _______          842-44).   If the plain  language and  legislative history  still          leave some room  for uncertainty about the statute's meaning, the          court defers  to  the interpretation  by an  agency charged  with          enforcement of the statute, as long as that interpretation "flows          rationally from a permissible construction of the statute."  Id.;                                                                       ___          see Chevron, 467 U.S. at 843.          ___ _______                                          B                                          B                                        ____________________          3.  "[E]ven  the  most  basic  general  principles  of  statutory          construction must yield to clear contrary evidence of legislative          intent."  National R.R. Passenger Corp. v. National Ass'n of R.R.                    _____________________________    ______________________          Passengers,  414  U.S.  453,  458   (1974).    Thus,  "[w]e  have          __________          overridden  literal language  where it  appeared  inadvertent and          undermined Congress'  aim."  United States v.  Estrella, 104 F.3d                                       _____________     ________          3,  8 (1st  Cir.), cert. denied,  117 S. Ct.  2494 (1997) (citing                             ____________          United States v. Indelicato, 97 F.3d 627, 629-30 (1st Cir. 1996),          _____________    __________          cert. denied, 117 S. Ct. 1013  (1997)).  Circuit courts have even          ____________          held that a court should reject the literal  meaning of a statute          in favor of one which  furthers congressional intent. See Merz v.                                                                ___ ____          Secretary of Health & Human Servs., 969 F.2d 201, 205-7 (6th Cir.          __________________________________          1992); Sciarotta v.  Bowen, 837 F.2d 135, 138-39  (3d Cir. 1988);                 _________     _____          Swain v. Schweiker, 676 F.2d 543, 546-47 (11th Cir. 1982).          _____    _________                                         -7-                                          7                    In the instant case, the statutory language is far from          clear,  particularly with respect to the  key question in dispute          here:   should  a court,  in  determining whether  Arnold is  "an          individual  with  a disability,"  consider his  untreated medical                                                          _________          condition or  his  condition after  treatment  with  ameliorating          medications?                    The  ADA  protects   a  qualified  individual   with  a          disability from discrimination in employment, among other things.          42 U.S.C.   12112(a) (1994).  The statute defines "disability" to          mean  "(A) a  physical or  mental  impairment that  substantially          limits  one  or  more  of  the  major  life  activities  of  [an]          individual;  (B) a  record of  such an  impairment; or  (C) being          regarded  as having such  an impairment."   42  U.S.C.   12102(2)          (1994).  An  individual must meet  one of these  three prongs  in          order to  be covered  under the  ADA.   If an  individual is  not          "disabled" within the meaning of one of the three prongs, the ADA          does not protect that person  against discrimination on the basis          of his disability, and we  need not proceed beyond this threshold          issue to  determine either  whether any  adverse action  has been          taken based upon the person's disability or whether  the employer          should have reasonably accommodated that disability.                    The   statute  does   not  itself   define   the  terms          "impairment," "substantially  limits," or "major  life activity,"          all of  which could have more  than one meaning.   In particular,          the  statute  does not  indicate whether  medications, prosthetic          devices, or other ameliorative treatments should be considered by                                         -8-                                          8          a  court in  determining whether  an individual  suffers from  an          impairment  and whether  such impairment  substantially limits  a          major   life  activity.  "The  statute  certainly  does  not  say          'impairment plus treatment'  or 'impairment  after treatment'  or          'treated impairment'; it just says 'impairment.'"  Sicard v. City                                                             ______    ____          of Sioux  City, 950 F.  Supp. 1420,  1436 (N.D. Iowa  1996).    A          ______________          reasonable person could interpret the plain statutory language to          require  an   evaluation  either  before  or  after  ameliorative          treatment.                      If  Congress has not expressly defined a statutory term          or phrase,  a court should  "normally construe  it in  accordance          with its ordinary  or natural meaning."  Smith  v. United States,                                                   _____     _____________          508 U.S.  223, 228 (1993); see Telematics, 967  F.2d at 706.  But                                     ___ __________          even as to the "ordinary or natural meanings" of the ADA's words,          reasonable  minds  can   differ,  especially  regarding   whether          ameliorative measures should be taken into account in determining          whether an individual is disabled  within the meaning of the ADA.                    UPS argues  that  the statutory  language  plainly  and          unambiguously requires consideration of the impairment as treated          with  all ameliorative medications and  other measures.  In UPS's          words, "substantially  limits means  substantially limits."   But          this  formulation begs  the  question.   The  ambiguous issue  is          whether the ADA's  reference to an  "impairment" (which might  or          might not  substantially limit  a major life  activity) means  an          impairment  without treatment or  an impairment  after treatment.                                         -9-                                          9          The  word  "impairment"   could  conceivably  be  read   to  mean          "impairment  after  the  underlying  condition  is  treated  with          ameliorative  therapy," which is essentially the way the district          court  interpreted  it.    Or  the word  could  be  read  to mean          "impairment that  results from  the underlying  condition in  the          absence  of  any ameliorative  treatment,"  as the  EEOC  and the          Justice Department have read it.   The statutory language, on its          face, gives no clue as to which interpretation Congress intended.          Certainly that language does not plainly and unambiguously refute          Arnold's  contention that  his  underlying  medical condition  --          diabetes  mellitus  --   constitutes  an  "impairment"  that   is          protected   by  the  ADA.     Similarly,  "[a]lthough   the  term          'substantially  limits' may be  unambiguous in and  of itself, it          nonetheless does not speak to the issue before [us]; that is, the          statute is silent as to whether a substantial limitation is to be          considered  with  or  without  regard  to  mitigating  measures."          Wilson v. Pennsylvania State Police  Dep't, 964 F. Supp. 898, 904          ______    ________________________________          (E.D. Pa. 1997) (footnote omitted).                    Thus, the plain language of the ADA is not so clear and          unambiguous as the district court and UPS have  characterized it,          so we turn to other tools of statutory construction.                                            C                                          C                    We begin with the legislative history of the ADA.  Both          the explicit language  and the illustrative examples  included in          the  ADA's  legislative  history make  it  abundantly  clear that          Congress  intended the  analysis of  an "impairment"  and of  the                                         -10-                                          10          question  whether it "substantially limits a major life activity"          to be  made on the basis  of the underlying (physical  or mental)          condition,  without  considering  the   ameliorative  effects  of          medication,  prostheses,  or  other  mitigating  measures.    For          example,  the House and Senate Committee reports explicitly state          that, in determining whether an impairment substantially limits a          major life activity,  the impairment "should be  assessed without          considering whether mitigating measures,  such as auxiliary  aids          or  reasonable  accommodations,  would  result  in  a  less-than-          substantial limitation."   H.R. Rep. No. 101-485, pt.  III, at 28          (1989),  reprinted in 1990 U.S.C.C.A.N. 445, 451 (House Judiciary                   ____________          Report);  see  H.R. Rep.  No.  101-485,  pt.  II, at  52  (1990),                    ___          reprinted  in 1990 U.S.C.C.A.N.  303, 334 ("House  Labor Report")          _____________          (The determination  whether  an  individual  has  a  "disability"          within  the  scope of  ADA coverage  "should be  assessed without          regard  to the  availability  of  mitigating  measures,  such  as          reasonable  accommodations or auxiliary aids."); S. Rep. No. 101-          116, at 23 (1989) ("Senate Report")(same).                    Indeed,   Congress  spoke   directly  to   the  medical          condition at issue in this case:  "persons with impairments, such          as  epilepsy or diabetes, which  substantially limit a major life          activity," are considered to have an actual  disability, "even if          the  effects of  the impairment  are  controlled by  medication."          House Labor  Report at  52; see  id. at  51 (Although  it is  not                                      ___  ___          possible to list all impairments  covered by the ADA, "[t]he term                           ___          includes . .  . diabetes."); Senate Report  at 22 (same).   These                                         -11-                                          11          reports make it abundantly clear  that Congress intended that the          statutory  definition  of  disability   --  an  "impairment  that          substantially limits [a]  major life activit[y]" -- refers to the          underlying  medical  condition, in  this case  Arnold's diabetes,          without regard  to whether  "the effects  of  the impairment  are          controlled by medication."  House Labor Report at 52.4                    The  district court focused on another statement in the          Senate Report  (contained in the  Report's discussion of  prong 3          but not contained in the House Reports):                      Another important goal of  the third prong of                    the definition is to ensure that persons with                    medical  conditions that  are under  control,                    and  that therefore  do  not currently  limit                    major life activities,  are not discriminated                    against  on   the  basis  of   their  medical                    conditions.   For  example, individuals  with                    controlled  diabetes  or epilepsy  are  often                    denied  jobs for  which  they are  qualified.                    Such  denials  are  the  result  of  negative                    attitudes and misinformation.          Senate Report at 24; see Arnold v. United Parcel Serv., Inc., No.                               ___ ______    _________________________          96-294-P-H, slip  op. at 13  (D. Me. May  5, 1997).   Noting that          this "speaks to the 'uncertainty' about the value of  legislative          history,  and the attendant  skepticism with which  courts should          view such  documents," the district  court relies  on the  above-          quoted passage from the Senate Report to conclude that the EEOC's          interpretation  does not  flow  rationally  from  a  "permissible          construction of the  statute."  Arnold, slip op.  at 13 (applying                                          ______          the test of  Chevron, 467 U.S. at  843).  The court  reached this                       _______                                        ____________________          4.  Both the House Labor Report, at 51-52, and the Senate Report,          at 22,  specifically list diabetes  as an impairment  under prong                                                                      _____          one of the ADA's definition of "disability."          ___                                         -12-                                          12          conclusion despite its  recognition that "the need  for deference          to the agency's view 'looms large.'"  Id. (quoting Strickland, 48                                                ___          __________          F.3d  at  17).   The  district  court  reasoned that  the  Senate          Report's  allusion to  uncontrolled diabetes  in  the context  of          prong  three   demonstrates   that  Congress   did   not   intend          uncontrolled medical conditions  to be included  in prong one  of          the definition  of "disability."   But the district court  has no          explanation for why the Senate Report had previously said, in its          discussion of prong one, that  the question "whether a person has                        _________          a  disability   should  be   assessed  without   regard  to   the          availability   of  mitigating   measures,   such  as   reasonable          accommodations or  auxiliary aids."   Senate Report  at 23.   Nor          does  the court  explain why  both House  Reports and  the Senate          Report do not mean exactly what they say (evaluating "disability"          without consideration of  mitigating measures), especially  since          _______          only  the Senate Report made the supposedly significant statement          limited to prong three.                    Most significantly, this  "prong three" passage in  the          Senate Report  is not  actually inconsistent  with that  report's          prior language (identical with that of the House  Report) stating          that courts  should focus  on the  untreated impairments:   these          passages can be easily squared by recognizing  that an individual          could  have a  "disability"  under  both  prong  one  (having  an                                              ____          impairment that substantially  limits a major life  activity) and                                                                        ___          prong three ("regarded as" having such an impairment) at the same          time;  one does  not preclude  the other.   The ADA  protects any                                         -13-                                          13          individual with  a "disability" against both discrimination based                                                  ____          on prong one and discrimination based on prong three.                                          D                                          D                    "'As in all  cases of statutory construction,  our task          is  to  interpret the  words  of [the  statute] in  light  of the          purposes Congress sought to serve.'"   Dickerson, 460 U.S. at 118                                                 _________          (quoting Chapman, 441 U.S. at 608) (alteration in Dickerson); see                   _______                                  _________   ___          Caron, 77  F.3d at  3-4.  Thus,  "[t]he definition  of disability          _____          must  be understood  in  light  of  congressional  objectives  in          enacting the ADA."  Soileau v.  Guilford of Maine, Inc., 105 F.3d                              _______     _______________________          12, 14 (1st  Cir. 1997).  The district  court's interpretation of          the  ADA to  require evaluation  of an  impairment  like Arnold's          diabetes  only  after  ameliorative  treatment  such  as  insulin                          _____          medication is inconsistent with those congressional objectives.                      The ADA is a "broad remedial statute."  Penny v. United                                                            _____    ______          Parcel Serv.,  128 F.3d  408,  414 (6th   Cir.  1997).   It is  a          ____________          "familiar   canon  of   statutory   construction  that   remedial          legislation," such as  the ADA, "should  be construed broadly  to          effectuate its  purposes."  Tcherepnin  v. Knight, 389  U.S. 332,                                      __________     ______          336 (1967).   The fundamental purpose of the ADA is "to provide a          clear and comprehensive  national mandate for the  elimination of          discrimination against individuals with disabilities."  42 U.S.C.              12101(b)(1)   (1994).     In   the   context   of  employment          discrimination,  the thrust  of this  purpose  is essentially  to          protect individuals who  have an underlying medical  condition or          other limiting impairment,  but who are in fact  capable of doing                                              ___                                         -14-                                          14          the  job, with  or without  the help  of medications,  prosthetic          devices, or  other ameliorative measures,  and with or  without a          reasonable accommodation by the employer.  See, e.g., 42 U.S.C.                                                       _________          12101(a)(7) ("individuals with disabilities . . . have been faced          with restrictions and  limitations, [and] subjected to  a history          of purposeful unequal treatment,  . . . based  on characteristics          that are  beyond the  control of such  individuals and  resulting          from  stereotypic  assumptions  not   truly  indicative  of   the          individual ability  of such  individuals to  participate in,  and          contribute to,  society").5   The ADA  protects such  individuals          from  discriminatory  actions   by  some   employers  who   might          erroneously believe  the individual's  medical condition  renders          her unable to do the particular job for which she has applied, or          who might harbor an irrational prejudice against people suffering          from such medical conditions.  Cf. School Bd. of Nassau County v.                                         ___ ___________________________          Arline, 480 U.S.  273, 284 & n.13 (1987)  (discussing the purpose          ______          of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.   794          (1994)).                                          ____________________          5.  See also id.   12101(a)(2) ("historically, society has tended              ________ ___          to  isolate  and segregate  individuals  with  disabilities, and,          despite some improvements, such  forms of discrimination  against          individuals  with disabilities  continue  to  be  a  serious  and          pervasive  social   problem");      12101(a)(3)  ("discrimination          against individuals  with disabilities persists  in such critical          areas   as   employment");      12101(a)(5)   ("individuals  with          disabilities    continually    encounter   various    forms    of          discrimination,  including  outright intentional  exclusion,  the          discriminatory  effects  of  .   . .  exclusionary  qualification          standards and criteria, segregation, and relegation to lesser . .          . jobs").                                         -15-                                          15                    Conceptually, it seems  more consistent with Congress's          broad remedial goals in enacting the  ADA, and it also makes more          sense,  to interpret  the words  "individual  with a  disability"          broadly, so  the  Act's coverage  protects more  types of  people          against  discrimination.     Even  with  such  a  broad  view  of          "disability," the concerns  and interests of employers  are still          amply protected through the Act's other provisions.  For example,          the  individual with a  disability who seeks a  job must still be          "qualified," i.e., able to perform the essential functions of the          job.  42  U.S.C.    12111(8), 12112(a) (1994).   Additionally, if          an accommodation is required in order to enable the individual to          perform  some  of  those  job  functions,  we  will  examine  the          reasonableness  of that  accommodation,  including its  cost  and          other burdens on the employer's business operations.  42 U.S.C.            12111(9),  (10);  see  also  Arline,  480  U.S.  at  285  ("[T]he                            _________  ______          definition  of  'handicapped   individual'  [in     504   of  the          Rehabilitation Act] is broad, but  only those individuals who are          both  handicapped  and  otherwise  qualified   are  eligible  for                             ___          relief.").6                    The  structure  of  the  Act  supports  this conceptual          distinction:   the  term "disability"  is defined  in    12102, a          general section applicable to all  subchapters and to all  areas.          The Act thus covers all "disabled" individuals and protects their          rights  to the  extent defined  in  each subchapter.   The  terms                                        ____________________          6.  We use  case law under    504 of  the Rehabilitation Act  for          guidance in interpreting  the ADA.  EEOC v. Amego, Inc., 110 F.3d                                              ____    ___________          135, 143 (1st Cir. 1997)(citing 42 U.S.C.   12117(b)).                                           -16-                                          16          "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                                         -17-                                          17          ADA's protection because  he would no longer be  "disabled."  The          employer  could then  fire him  on  the basis  of his  disability          without fear of  the protective consequences embodied in the ADA.          UPS argues that "[t]his is simply not true; such conduct would be          the very sort  of situation the 'regarded as'  prong was designed          to cover."  Even if such conduct were covered under prong  three,          that would not mean  the same conduct is  not also covered  under          prong  one.   Indeed,  the  House  Report  specifically  mentions          "persons  with impairments, such  as epilepsy or  diabetes, which                                                            ________          substantially limit a major life activity" and says that they are          "covered  under the first prong of  the definition of disability,                              _____          even  if  the   effects  of  the  impairment  are  controlled  by          medication."   House Report  at 52  (emphasis added);  see Senate                                                                 ___          Report  at 22.   There is  no reason  this employee could  not be          protected under two prongs simultaneously.  In light of the broad          remedial purposes of  the ADA,  see Penny,  128 F.3d  at 414,  we                                          ___ _____          believe Congress intended the Act  to prohibit such a termination          under prong one.                      Similarly,  UPS's  reading  would treat  differently  a          plaintiff  like Arnold (who takes his  medications and thus would          not be  protected by the ADA,  according to UPS) and  a plaintiff          who is  also  diabetic (i.e.,  suffering  from the  same  medical          condition  as  Arnold)  but   who  cannot  afford  to  take   his          medications.  The latter plaintiff  would be protected by the ADA          according to UPS's  analysis, but Arnold  would not.   We do  not          think Congress intended such an anomalous result.                                         -18-                                          18                    Arnold's diabetes makes him just the type of person the          ADA was designed to protect.  He would have been hired by UPS but          for his inability to get  a commercial vehicle license, which was          prevented  only because he  had diabetes (the  underlying medical          condition, without  taking into account  ameliorative treatment).          But Arnold alleges  that, with treatment, he can  perform the job          despite  his impairment if  UPS will reasonably  accommodate him.          This would ordinarily be a factual question on the merits for the          court to  determine.   Yet under UPS's  and the  district court's          interpretation of the ADA, a  person in this archetypal situation          is not protected from discrimination by the ADA because he is not          disabled and  hence not  even a proper  plaintiff under  the Act.          According to UPS, in such  circumstances, the trier of fact never          gets  to  the  merits  of  the  alleged  discrimination,  of  the          "qualified individual" requirement,or of reasonableaccommodation.                    UPS's interpretation fails because, by "confus[ing] the          disease  with  its  treatment,"  Matczak  v.  Frankford  Candy  &                                           _______      ___________________          Chocolate  Co., No.  96-1057, slip  op. at  6 (3d  Cir.  Nov. 18,          ______________          1997),  it  conflates  two  separate  parts  of  the  ADA.    The          determination  as to  whether  an individual  is "disabled"  is a          threshold  issue;  if  one  is  not disabled,  then  one  is  not          protected  by the ADA  against discrimination.   See Soileau, 105                                                           ___ _______          F.3d  at 15.  Once  a person is  determined to be  covered by the          ADA, then that person has a right not to be discriminated against          in employment  (inter alia)  on the basis  of her  disability, as          long  as  she is  qualified  for  the  job,  with  or  without  a                                         -19-                                          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                                         -20-                                          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.                                         -21-                                          21          in its  guidelines.  The  ADA authorizes -- indeed  "requires" --          the EEOC to  "issue regulations in an accessible  format to carry          out"  the  Act.   42 U.S.C.     12116 (1994).   Pursuant  to that          authority,  the  EEOC has  promulgated  regulations,  attached to          which as  an appendix it has compiled guidelines for interpreting          the statute.   According to those guidelines,  the determinations          of whether  an individual  has an "impairment"  and whether  that          impairment "substantially limits a major life activity" should be          made  "on a  case by  case  basis, without  regard to  mitigating          measures  such as medicines, or assistive or prosthetic devices."          EEOC   Interpretive  Guidance,  29  C.F.R.  Part  1630,  App.              1630.2(h)    (1997)   (physical    impairment)   and    1630.2(j)          (substantially  limits)  (noting  that  "a  diabetic  who without          insulin would  lapse into a  coma would be  substantially limited          because  the individual  cannot  perform  major  life  activities          without the aid of medication" (citing Senate Report at 23; House          Labor Report at 52)).                      We recognize that the EEOC  interpretive guidelines are          not  controlling in the way that regulations promulgated pursuant          to  the  Administrative  Procedure  Act,  5  U.S.C.     552,  are          controlling.8   Nevertheless, such  interpretive guidelines  "'do                                        ____________________          8.  Under Chevron, 467 U.S. at 842-44, unless the plain  language                    _______          of a statute (or that language viewed in light of the legislative          history) is clear, courts will  defer to an interpretation of the          statute  by  the  agency  charged  with its  enforcement  if  the          agency's  interpretation is  "a permissible construction"  of the          statute's  language and  legislative history.    Id. at  843.   A                                                           ___          permissible  construction   is  one   that  is  not   "arbitrary,          capricious, or manifestly contrary to the statute."   Id. at 844.                                                                ___          "The court need not conclude that the agency construction was the                                         -22-                                          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)).                                         -23-                                          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.                                         -24-                                          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                                         -25-                                          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                    _______     ___________________                                         -26-                                          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                                         -27-                                          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.                                         -28-                                          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.                                           -29-                                          29
