Kawatachi v. The Parrish Collection, LLC
CourtHawaii Supreme Court
Date FiledOctober 28, 2026
DocketSCWC-23-0000701
StatusPublished
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Full Opinion
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Electronically Filed
Supreme Court
SCWC-XX-XXXXXXX
28-OCT-2026
09:37 AM
Dkt. 22 OP
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
________________________________________________________________
MARCUS L. KAWATACHI, in his official capacity as
Executive Director of the Hawaiʻi Civil Rights Commission,
ex relatione, ROBERT A. FAHN and BRENDA A. FAHN,
Respondent/Plaintiff-Appellant,
vs.
THE PARRISH COLLECTION, LLC; THE PARRISH COLLECTION KAUAI;
JONATHAN D. PARRISH and SIMONE McCAFFREY,
Petitioners/Defendants-Appellees,
and
LINDA EVANS, as Trustee of the LAURA P. EVANS
REVOCABLE TRUST DATED May 8, 2022,
Respondent/Defendant-Appellee.
________________________________________________________________
SCWC-XX-XXXXXXX
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-XX-XXXXXXX; CASE NO. 5CCV-XX-XXXXXXX)
OCTOBER 28, 2026
DEVENS, C.J., McKENNA, EDDINS, AND GINOZA, JJ., AND
CIRCUIT JUDGE DREWYER, ASSIGNED BY REASON OF VACANCY
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OPINION OF THE COURT BY McKENNA, J.
I. Introduction
During the COVID-19 pandemic, a tenant with a disability
requested that a landlord provide an accommodation waiving a
weekly cleanings provision in a rental agreement. The tenant
explained that, because of his disability, he faced an increased
risk of hospitalization or death if he contracted the virus. He
therefore did not want non-family members entering the property.
The landlord denied the request, saying that the accommodation
was neither reasonable nor necessary.
The Circuit Court of the Fifth Circuit (“circuit court”)
granted summary judgment in favor of the landlord. The
Intermediate Court of Appeals (“ICA”) vacated this judgment and
ordered a remand. On certiorari, the landlord alleges the ICA
erred.
The ICA did not err by vacating summary judgment. But in
this opinion, we provide guidance on how disability
accommodation requests are to be evaluated under Hawaiʻi’s fair
housing law. We also address an issue not addressed by the ICA.
Although parties are encouraged to engage in an interactive
process, under current law, there is no standalone liability if
there is a breakdown in engagement.
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We therefore affirm the ICA’s December 17, 2025, judgment
on appeal and remand the case to the circuit court for further
proceedings consistent with this opinion.
II. Background
A. Legal Background
1. Formation of the HCRC
The Hawaiʻi Civil Rights Commission (“HCRC”) was formed
through Act 219, Session Laws of Hawaiʻi 1988, which was codified
as HRS Chapter 368. 1998 Haw. Sess. Laws Act 219, § 1 at 1-3;
see HRS § 368-1 (2015). HCRC is authorized to provide “a
uniform procedure” for enforcing Hawaiʻi’s anti-discrimination
laws in the areas of employment (HRS Chapter 378), housing (HRS
Chapter 515), and public accommodations (HRS Chapter 489). HRS
§ 368-1 (2015); see HRS § 515-9.
In enacting Chapter 368, the Hawaiʻi State Legislature (the
“Legislature”) found and declared, among other things, that
discrimination in housing is contrary to public policy. Chapter
368 also vests the HCRC with powers to “receive, investigate,
and conciliate complaints;” “hold hearings and make inquiries;”
“commence civil actions in circuit court to seek appropriate
relief;” “issue the right to sue to a complainant;” “order
appropriate legal and equitable relief or affirmative action;”
and “adopt rules.” HRS § 368-3(1)-(5), (9) (2015).
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2. Hawaiʻi’s Fair Housing Law
Hawaiʻi’s fair housing law is codified in the Hawaiʻi
Discrimination in Real Property Transactions Act, Hawaiʻi Revised
Statutes (“HRS”) §§ 515 et seq., and Hawaiʻi Administrative Rules
(“HAR”) §§ 12-46-301 et seq. Hawaiʻi’s fair housing law
protects against discrimination on the basis of race, sex
(including gender identity or expression), sexual orientation,
color, religion, marital status, familial status, ancestry,
disability, age, or human immunodeficiency virus infection
(“HIV”). HRS § 515-3(a) (Supp. 2023). Chapter 515 applies to
sales, leases, rentals, and other housing practices, see HRS §§
515-3(a)(1)-(11) and 515-5 (2018), and provides complainants
with substantive rights as well as potential legal and equitable
remedies. See HRS §§ 515-9 (2018) and 515-13 (2018).
When Chapter 515 was initially promulgated in 1967, the
Legislature directed that it “shall be construed according to
the fair import of its terms and shall be liberally construed.”
HRS § 515-1 (2018).
Then, in 1992, the Legislature passed Act 171, Session Laws
of Hawaiʻi 1992. The purpose section of Act 171 stated:
SECTION 1. The purpose of this Act is to conform the Real
Estate Transactions Law, which prohibits discrimination in
matters related to housing and real estate, with the
federal Fair Housing Amendments Act of 1988. The Department
of Housing and Urban Development (HUD) has published notice
that Hawaiʻi’s law is no longer substantially equivalent to
federal law. HUD intends to decertify Hawaiʻi unless these
amendments are enacted. Certification is necessary in order
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for Hawaiʻi to receive federal funds for the investigation
of housing discrimination cases.
1992 Haw. Sess. Laws Act 171 § 1 at 1 (“Act 171”).
The HCRC administers Hawaiʻi’s fair housing law. To
maintain HCRC’s federal certification, HUD requires that “the
fair housing law that the agency administers provide[] rights,
procedures, remedies, and the availability of judicial review
that are substantially equivalent to those provided in the
federal Fair Housing Act.” 24 C.F.R. § 115.201(a) & (b); see
HRS Chapter 368. Act 171 was passed because Hawaiʻi’s fair
housing law was apparently not as protective as the 1988 federal
Fair Housing Amendments Act of 1988 (“FHAA”), especially with
respect to disability discrimination.
3. HCRC’s Enforcement of Hawaiʻi’s Fair Housing Law
As required by Act 171 of 1992, the HCRC promulgated HAR
§§ 12-46-301 et seq. to implement and conform Hawaiʻi’s fair
housing law to Title VIII of the Civil Rights Act of 1968, as
amended by the FHAA. HAR § 12-46-301; 42 U.S.C. §§ 3601-3619;
1992 Haw. Sess. Laws Act 171, § 1 at 1.
HAR § 12-46-301 states in relevant part:
The purpose of this subchapter is to implement laws
prohibiting discrimination in real property transactions
toward the goal of eliminating such discrimination and to
implement changes made by Act 171, Session Laws of Hawaiʻi
1992, to conform state law to Title VIII of the Civil
Rights Act of 1968, as amended by the Fair Housing
Amendments Act of 1988. Chapter 515, HRS, prohibits
discriminatory practices by an owner, any person engaging
in a real property or real estate transaction, or a real
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estate broker or salesperson against another person because
of a protected basis.
4. Conformance with Federal Law
Thus, both Act 171 and HAR § 12-46-301 require this court
to construe our fair housing law in conformance with federal law
for HCRC to remain qualified as a certified agency to receive
federal funds for investigation and enforcement work. Hence,
federal caselaw interpreting the FHAA guides this court’s
interpretation of Hawai‘i’s fair housing law.
B. Factual and Procedural Background
1. Factual Background
As the founder of the Parrish Collection Kauai, Jonathan
Parrish (collectively, “Parrish”) oversees the management and
operation of high-end vacation rental properties on Kauaʻi.
In 2006, Robert A. Fahn (“Robert”) was diagnosed with heart
disease. In August 2020, Robert and Brenda A. Fahn (“Brenda”)
(together, the “Fahns”) moved from Colorado to Kauaʻi with their
family because Kauaʻi had relatively few COVID-19 cases.
In August 2020, the Fahns and Parrish executed a rental
agreement for a rental property in Koloa. The rental agreement
contained a provision governing weekly cleanings of the
property:
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4. Cleaning to be scheduled every week and completed by the
Parrish Collection Housekeeping staff and paid for by the
tenant. This will be done hourly at $40.00 per hour and the
number of hours dependent on property condition.
(“Weekly Cleanings Provision”)
Shortly after moving in, Brenda emailed a Parrish employee
that she did not want housekeeping staff entering the property
based on a negative COVID-19 test result. At the time, while
not expressly requesting an accommodation based on Robert’s
heart disease, Brenda explained that Robert “has a 5-6 [percent]
mortality rate and almost 20 [percent] hospital rate (because of
his age and conditions).” Brenda ended with, “I hope you
understand wanting to delay housekeeping.”
But on November 16, Parrish informed the Fahns that they
failed to comply with the Weekly Cleanings Provision and that
they “cannot be selective” in granting Parrish access for
repairs but not for cleaning.
Then, on November 23, the Fahns’ doctor sent Parrish a
letter expressly requesting an accommodation through suspension
of the Weekly Cleanings Provision because of Robert’s heart
disease. On November 24, Robert also sent Parrish a letter
formally requesting a waiver of the Weekly Cleanings Provision
based on his disability.
On November 25, the Fahns’ mainland attorney emailed
Parrish a cease-and-desist letter, asserting that the Weekly
Cleanings Provision was unenforceable and a violation of the
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Fair Housing Act of 1968. The attorney alleged that Parrish
breached the rental agreement and committed fraud, and demanded
that Parrish: (1) stop enforcing the Weekly Cleaning Provision;
(2) reduce rent by fifty percent for September, October, and
November; (3) pay $5,000.00 in reasonable attorney’s fees; and
(4) pay $10,000.00 in general damages.
That same day, Parrish rejected the demands and countered
that the request to simply not enforce the Weekly Cleanings
Provision was not reasonable. It suggested as an alternative
that the Fahns not be present in the property during the weekly
cleanings. Parrish indicated that it followed strict industry
protocols for its cleaning crew. It noted that all of employees
are screened daily, wear full personal equipment (including
masks and gloves), and use CDC-approved cleaning products. It
stated, “this is not a negotiation. Your clients have a binding
Lease. They will comply with the terms of that Lease or it will
be terminated.”
On November 27, Parrish terminated the Fahns’ tenancy,
effective as of November 30 and filed a complaint for summary
possession on November 30.
On December 31, the Fahns vacated the rental property.
Parrish retained $5,471.44 of the $6,000.00 security deposit to
clean, replace, and repair the property.
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2. HCRC Proceedings
In December 2020, the Fahns filed a complaint with the
HCRC, alleging that Parrish “unlawfully discriminated against
[them] on the basis of disability by failing to engage in the
interactive process and by failing to provide a reasonable
accommodation for [Robert]’s disabilities.”
Following an investigation, the HCRC “found that there was
reasonable cause to believe that unlawful discriminatory
practices had occurred.” When conciliation efforts proved
unsuccessful, the parties received notices of the right to sue
in March 2023. The Fahns exercised their right to sue in April
2023.
3. Circuit Court Proceedings
In July 2023, the HCRC filed the instant action, asserting
that Parrish unlawfully discriminated against Robert based on
his disability by failing to engage in an interactive process
and by failing to provide a reasonable accommodation for
Robert’s disability, in violation of HRS § 515-3(a)(9) and HAR §
12-46-306(a)(3). The HCRC sought actual, compensatory, and
punitive damages.
In September 2023, Parrish filed a motion to dismiss or, in
the alternative, for summary judgment. Following a hearing, the
circuit court granted Parrish’s motion to dismiss the suit with
prejudice after finding that the Commission failed to adequately
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allege that the requested accommodation was reasonable and
necessary. It also determined that Hawaiʻi’s fair housing law
did not create independent liability for a landlord’s failure to
engage in an interactive process and, even if it did, Parrish
had undertaken efforts to resolve the matter.
The HCRC appealed the circuit court’s order granting
Parrish’s motion to dismiss.
4. ICA Proceedings
In November 2025, the ICA vacated the circuit court’s order
and final judgment. Kawatachi v. Parrish Collection, LLC, No.
CAAP-XX-XXXXXXX, 2025 WL 3216810, at *2 (Haw. App. Nov. 18,
2025) (SDO). The ICA treated Parrish’s motion as a motion for
summary judgment because the circuit court considered
declarations and exhibits filed by the parties. Kawatachi, 2025
WL 321681, at *2 n.2.
The ICA then determined that Parrish failed to produce
enough evidence negating the “disability,” “necessary,” and
“reasonable” factors. Kawatachi, 2025 WL 321681, at *4. The
ICA did not reach the issue of whether there is standalone
liability under HRS § 515-3(a)(9) for a landlord’s failure to
engage in an interactive process.
5. Certiorari Proceedings
On certiorari, Parrish challenges the ICA’s holding that it
failed to produce evidence negating the “necessary” and
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“reasonable” factors and urges this court to address whether
independent liability exists under HRS § 515-3(a)(9).
III. Standard of Review
A. Motion for Summary Judgment
An appellate court reviews an “award of summary judgment de
novo under the same standard applied by the circuit court.”
Fujimoto v. Au, 95 Hawaiʻi 116, 136, 19 P.3d 699, 719 (2001)
(emphasis removed) (citation omitted).
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Id. (cleaned up). We must review the evidence in the light most
favorable to the party opposing the motion for summary judgment.
Fujimoto, 95 Hawaiʻi at 137, 19 P.3d at 720 (cleaned up).
With respect to burdens:
The burden is on the party moving for summary judgment
(moving party) to show the absence of any genuine issue as
to all material facts, which, under applicable principles
of substantive law, entitles the moving party to judgment
as a matter of law. This burden has two components.
First, the moving party has the burden of producing support
for its claim that: (1) no genuine issue of material fact
exists with respect to the essential elements of the claim
or defense which the motion seeks to establish or which the
motion questions; and (2) based on the undisputed facts, it
is entitled to summary judgment as a matter of law. Only
when the moving party satisfies its initial burden of
production does the burden shift to the non-moving party to
respond to the motion for summary judgment and demonstrate
specific facts, as opposed to general allegations, that
present a genuine issue worthy of trial.
Second, the moving party bears the ultimate burden of
persuasion. This burden always remains with the moving
party and requires the moving party to convince the court
that no genuine issue of material fact exists and that the
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moving party is entitled to summary judgment as a matter of
law.
French v. Hawaii Pizza Hut, Inc., 105 Hawaiʻi 462, 470, 99 P.3d
1046, 1054 (2004) (cleaned up).
[Also,] a summary judgment movant may satisfy [their]
initial burden of production by either (1) producing
admissible evidence to show there was no genuine issue of
material fact, or (2) showing that the non-moving party
cannot carry [their] burden of proof at trial. . . . [T]he
movant generally cannot support its initial burden of
production by pointing solely to the non-moving party’s
lack of evidence if discovery has not concluded.
Ralston v. Yim, 129 Hawaiʻi 46, 48, 292 P.3d 1276, 1278 (2013)
(cleaned up).
B. Statutory Interpretation
Our standard of review for statutory interpretation is
well-established. “The interpretation of a statute is a
question of law which [the appellate] court reviews de novo.”
Sierra Club v. Dep’t of Transp., 120 Hawaiʻi 181, 197, 202 P.3d
1226, 1242 (2009) (cleaned up). Our construction of statutes is
guided by the following principles:
First, the fundamental starting point for statutory-
interpretation is the language of the statute itself.
Second, where the statutory language is plain and
unambiguous, our sole duty is to give effect to its plain
and obvious meaning. Third, implicit in the task of
statutory construction is our foremost obligation to
ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the
language contained in the statute itself. Fourth, when
there is doubt, doubleness of meaning, or indistinctiveness
or uncertainty of an expression used in a statute, an
ambiguity exists.
When there is ambiguity in a statute, “the meaning of
the ambiguous words may be sought by examining the context
with which the ambiguous words, phrases, and sentences may
be compared, in order to ascertain their true meaning.”
Moreover, the courts may resort to extrinsic aids in
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determining legislative intent, such as legislative
history, or the reason and spirit of the law.
State v. Wheeler, 121 Hawaiʻi 383, 390, 219 P.3d 1170, 1177
(2009) (cleaned up).
IV. Discussion
A. Hawaiʻi’s Fair Housing Law and the FHAA
The ICA appropriately set aside the grant of summary
judgment in favor of Parrish. But as this court has not
previously addressed a legal challenge based on Hawaiʻi’s fair
housing law, we provide further guidance on how this challenge
should be evaluated by the circuit court on remand.
The cardinal rule of statutory construction begins with the
statute’s plain language. Along with other protected classes,
HRS § 515-3 bars housing discrimination based on a person’s
disability. HRS § 515-3(a) provides:
(a) It is a discriminatory practice for an owner or any
other person engaging in a real estate
transaction . . . because of . . . disability . . . :
. . . .
(9) To refuse to make reasonable accommodations
in rules, polices, practices, or services when
the accommodations may be necessary to afford a
person with a disability equal opportunity to
use and enjoy a housing accommodation; . . .
provided further that if the disability is not
readily apparent, an owner or other person
engaging in a real estate transaction may
request information that verifies that the
person has a disability, defined as a physical
or mental impairment that substantially limits
a major life activity. An owner or other person
engaging in a real estate transaction shall not
request medical records or access to health
care providers, and shall not inquire as to the
diagnosis, nature, or severity of the person’s
disability.
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Here, it is undisputed that Parrish is a “person” engaged
in a “real estate transaction” within the meaning of HRS Chapter
515.1
HRS § 515-2 (2018) defines “disability” as:
having a physical or mental impairment which substantially
limits one or more major life activities, having a record
of such an impairment, or being regarded as having such an
impairment. The term does not include current or illegal
use of or addiction to a controlled substance or alcohol or
drug abuse that threatens the property or safety of others.
And HRS Chapter 515 is to be “construed according to the fair
import of its terms and shall be liberally construed.” HRS §
515-1.
The HCRC similarly defines “disability” in HAR § 12-46-302
as:
having a physical or mental impairment which substantially
limits one or more major life activities, having a record
of such impairment, or being regarded as having such an
impairment, including persons who have HIV or AIDS. The
term does not include current illegal use of or addiction
to a controlled substance, or alcohol or drug abuse that
threatens the property or safety of others.
1 HRS § 515-2 provides, in relevant part:
“Person” refers to the definition of [HRS] section 1-19 and
includes a legal representative, partnership, receiver,
trust, trustee, trustee in bankruptcy, the State, or any
governmental entity or agency.
. . . .
“Real estate transaction” includes the sale, exchange,
rental, or lease of real property.
HRS § 1-19 defines “person” to include “corporations, firms,
[and] associations.”
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Within HCRC-promulgated housing discrimination regulations
is HAR § 12-46-306, which provides:
(a) It is a discriminatory practice for an owner or any
other person engaging in a real estate
transaction . . . :
. . . .
(3) To refuse to make reasonable accommodations in
rules, policies, practices, or services, when
such accommodations may be necessary to afford
a person with a disability equal opportunity to
use and enjoy a housing accommodation,
including public and common use areas[.]
HAR § 12-46-306(a)(3); see HAR § 12-46-305(2). Like HRS Chapter
515, the HCRC directs that HAR §§ 12-46-301 et seq. “shall be
liberally construed according to the fair import of their terms
toward the goal of eliminating discrimination in real estate
transactions.” HAR § 12-46-303.
As noted above, pursuant to Act 171, the HCRC adopted HAR
§§ 12-46-301 et seq. to implement and conform HRS Chapter 515 to
the FHAA. See 1992 Haw. Sess. Laws Act 171, § 1 at 1; see also
24 C.F.R. § 115.201. The FHAA renders it unlawful “[t]o
discriminate in the sale or rental, or to otherwise make
unavailable or deny, a dwelling to any buyer or renter because
of a [disability.]”2 42 U.S.C. § 3604(f)(1). Discriminatory
2 The statute actually uses the word “handicap.” Federal courts use the
terms “disability” and “handicap” interchangeably. See Giebeler v. M & B
Assocs., 343 F.3d at 1146 n.2 (citing Helen L. v. DiDario, 46 F.3d 325, 330
n.8 (3d Cir. 1995) (“The change in nomenclature from ‘handicap’ [in the
Rehabilitation Act] to ‘disability’ [in the Americans with Disabilities Act]
reflects Congress’ awareness that individuals with disabilities find the term
‘handicapped’ objectionable.”)) Accordingly, we exclusively use the word
“disability” or its variations. We bracket “disability” or its variations
when it is not the original term. We also use person-first language (person
with a disability) where possible.
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housing practices include “a refusal to make reasonable
accommodations in rules, policies, practices, or services, when
such accommodations may be necessary to afford [a person who is
disabled] equal opportunity to use and enjoy a dwelling.” 42
U.S.C. § 3604(f)(3)(B); see 24 C.F.R § 966.7(a) (applying the
same principle to lease and grievance procedures).
The FHAA defines “[disability]” as “(1) a physical or
mental impairment which substantially limits one or more of [a]
person’s major life activities, (2) a record of having such an
impairment, or (3) being regarded as having such an impairment.”
42 U.S.C. § 3602(h). The definition mirrors the definition of
“disability” in the Americans with Disabilities Act (“ADA”).3
42 U.S.C. § 12102(1) (defining “disability”).
This court turned to federal caselaw construing federal
discrimination law in the fair employment context, based on the
similarities in language between Hawaiʻi and federal law. See
French, 105 Hawaiʻi at 467, 99 P.3d at 1051 (turning to federal
caselaw interpreting the ADA as guidance for interpreting
Hawaiʻi’s fair employment law). But, as noted, Act 171 and HAR
§ 12-46-301 actually require Hawaiʻi’s fair housing law to
3 Also, federal courts rely on Rehabilitation Act and ADA regulations and
cases when interpreting the FHAA’s reasonable accommodation provisions. See,
e.g., Giebeler, 343 F.3d at 1149; Oconomowoc Residential Programs v. City of
Milwaukee, 300 F.3d 775, 782–83 (7th Cir. 2002); Summers v. City of
Fitchburg, 940 F.3d 133, 139 (1st Cir. 2019); Bryant Woods Inn, Inc. v.
Howard Cnty., Md., 124 F.3d 597, 603 (4th Cir. 1997); Schaw v. Habitat for
Human. of Citrus Cnty., Inc., 938 F.3d 1259, 1265 n.2 (11th Cir. 2019).
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conform with federal law. We therefore turn to federal case law
to set out an appropriate framework as well as definitions of
applicable terms.
B. Under HRS § 515-3(a)(9), plaintiffs bear the initial burden
to prove an accommodation is both reasonable and necessary,
after which the burden shifts to defendants to show that it
is unreasonable.
Howard v. HMK Holdings, LLC, 988 F.3d 1185 (9th Cir. 2021)
(“Howard”) sets out the legal framework we adopt. To establish
a prima facie case of discrimination based on a failure to
accommodate, a plaintiff must demonstrate:
(1) that the plaintiff . . . is [disabled] within the
meaning of [the FHAA]; (2) that the defendant knew or
should reasonably be expected to [have] know[n] of the
[disability]; (3) that accommodation [in rules, policies,
practices, or services] of the [disability] may be
necessary to afford the [person with the disability] an
equal opportunity [to a person without a disability] to use
and enjoy the dwelling; (4) that the accommodation [in
rules, policies, practices, or services] is reasonable; and
(5) that defendant refused to make the requested
accommodation.
Howard, 988 F.3d at 1189–90 (citing Dubois v. Ass’n of Apartment
Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006)).
“The reasonable accommodation inquiry is highly fact-specific,
requiring case-by-case determination.” Dubois, 453 F.3d at 1179
(quoting United States v. California Mobile Home Park Mgmt. Co.,
107 F.3d 1374, 1380 (9th Cir. 1997) (“Mobile Home II”)); see HAR
§ 12-46-301 (requiring the HCRC to “review each case on an
individual basis”).
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Although HRS § 515-2, HAR § 12-46-302, and 42 U.S.C. § 3602
do not define “necessary,” “equal opportunity,” or “reasonable,”
various federal courts have addressed these terms under the FHA.
We adopt the following definitions and standards for these
terms.
Starting with “necessary,” some courts have observed that
“it means ‘[i]ndispensable, requisite, essential, [and] needful”
and conveys “a high standard,” Vorchheimer v. Philadelphian
Owners Ass’n, 903 F.3d 100, 105 (3d Cir. 2018), while others
have noted, “if the proposed accommodation provides no direct
amelioration of a disability’s effect, it cannot be said to be
‘necessary.’” Bryant Woods Inn, Inc. v. Howard Cnty., Md., 124
F.3d 597, 604 (4th Cir. 1997) (citation omitted). See Cinnamon
Hills Youth Crisis Ctr., Inc. v. Saint George City, 685 F.3d
917, 923 (10th Cir. 2012) (Gorsuch, J.) (noting “necessary”
means “something that ‘cannot be done without’”).
But an accommodation need not be “actually necessary” for a
disabled tenant to enjoy his apartment, as such a restrictive
standard would flout the “broad remedial purpose” of the FHAA,
HRS § 515-1, and HAR § 12-46-301; rather, it is sufficient that
the accommodation “may be necessary” (emphasis in original).
Hollandale Apartments & Health Club, LLC v. Bonesteel, 100
N.Y.S.3d 711, 720 (N.Y. App. Div. 2019) (citations omitted).
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The text of 42 U.S.C. § 3604(f)(3)(B) tethers necessity to
the goal of affording tenants with disabilities “equal
opportunity to use and enjoy [their] dwelling.” See
Vorchheimer, 903 F.3d at 107-08 (“Once we identify the
particular tenant’s need, we can gauge what is necessary to
afford that tenant equal housing opportunity.”). “[T]he phrase
‘equal opportunity,’ at least as used in the FHAA, is concerned
with achieving equal results, not just formal equality.” Smith
& Lee Assocs., Inc. v. City of Taylor, Mich., 102 F.3d 781, 795
(6th Cir. 1996) (citations omitted). In other words,
“accommodations that go beyond affording a [tenant with a
disability] ‘an equal opportunity to use and enjoy a dwelling’
are not required by the [FHAA].” Hubbard v. Samson Mgmt. Corp.,
994 F. Supp. 187, 190 (S.D.N.Y. 1998) (citing Bryant Woods, 124
F.3d at 605); United States v. California Mobile Home Park Mgmt.
Co., 29 F.3d 1413, 1418 (9th Cir. 1994)).
Lastly, “[a]n accommodation is reasonable if it is both
efficacious and proportional to the costs to implement it.”
Oconomowoc Residential Programs v. City of Milwaukee, 300 F.3d
775, 784 (7th Cir. 2002) (citation omitted). “Assessing
reasonableness ‘require[s] a balancing of the parties’ needs.’”
Schaw v. Habitat for Human. of Citrus Cnty., Inc., 938 F.3d
1259, 1265 (11th Cir. 2019). Conversely, “[a]n accommodation is
unreasonable if it imposes undue financial or administrative
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burdens or requires a fundamental alteration in the nature of
the program.” Oconomowoc, 300 F.3d at 784 (citation omitted).
“In assessing costs, the court may look at both financial and
administrative costs and burdens.” Oconomowoc, 300 F.3d at 784
(citing Bryant Woods, 124 F.3d at 604).
We next address which party bears the burden of proving
necessity and reasonableness. To prove that an accommodation is
necessary, nearly all federal circuit courts agree that
plaintiffs carry the initial burden to “‘show that, but for the
accommodation, they likely will be denied an equal opportunity
to enjoy the housing of their choice.’” Giebeler, 343 F.3d at
1155 (citing Smith & Lee, 102 F.3d at 795).4 “Put another way,
‘[w]ithout a causal link between defendants’ policy and the
plaintiff’s injury, there can be no obligation on the part of
defendants to make a reasonable accommodation.’” Giebeler, 343
F.3d at 1155 (citing Mobile Home II, 107 F.3d at 1380).
4 See, e.g., Summers v. City of Fitchburg, 940 F.3d 133, 139 (1st Cir.
2019); Quad Enters. Co., LLC v. Town of Southold, 369 F. App’x 202, 207 (2d
Cir. 2010) (unpublished); Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of
Twp. of Scotch Plains, 284 F.3d 442, 457 (3d Cir. 2002); Bryant Woods, 124
F.3d at 603–04; Howard v. City of Beavercreek, 276 F.3d 802, 807 (6th Cir.
2002); Oconomowoc, 300 F.3d at 784; One Love Hous., LLC v. City of Anoka,
Minnesota, 93 F.4th 424, 433 (8th Cir. 2024); Courage to Change Ranches
Holding Co. v. El Paso Cnty., Colorado, 73 F.4th 1175, 1204 (10th Cir. 2023);
Schaw, 938 F.3d at 1269.
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That said, a significant federal circuit split exists
regarding which party bears the initial burden of proving
reasonableness.5 The circuits are divided into four camps.
In the first camp, the United States Courts of Appeals for
the Third Circuit is the only court that does not require
plaintiffs to initially prove reasonableness; rather, once
plaintiffs establish the “necessary” factor, the burden shifts
to defendants to show the requested accommodation is
unreasonable. Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment
of Twp. of Scotch Plains, 284 F.3d 442, 457 (3d Cir. 2002).
The second camp includes the United States Courts of
Appeals for the Seventh, Eighth, and Eleventh Circuits, which
require plaintiffs to initially show that the requested
accommodation is “reasonable on its face,” after which the
burden shifts to defendants to demonstrate that it is
unreasonable. See Oconomowoc, 300 F.3d at 783; One Love Hous.,
LLC v. City of Anoka, Minnesota, 93 F.4th 424, 432-33 (8th Cir.
2024); Schaw, 938 F.3d at 1265. These courts adopted their
burden-shifting regime from US Airways, Inc. v. Barnett, 535
U.S. 391, 391 (2002).
In Barnett, the airline defendant declined to accommodate
the plaintiff-employee’s disability by making an exception to
5 The Second and D.C. Circuits have not ruled on this particular
question. See Quad, 369 F. App’x at 208 n.1.
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its seniority system that would have allowed the plaintiff to
work in the mailroom instead of two more senior employees who
had bid for the position. 535 U.S. at 394. As a result, the
plaintiff lost his job and sued the airline defendant under the
ADA, arguing, in part, that “the mailroom job amounted to a
‘reasonable accommodation’ of his disability, and that [the
airline defendant], in refusing to assign him the job,
unlawfully discriminated against him.” Barnett, 535 U.S. at
394-95. The district court awarded summary judgment in favor of
the airline defendant after finding there were undisputed facts
about seniority, but the United States Courts of Appeals for the
Ninth Circuit reversed, holding “that the presence of a
seniority system is merely ‘a factor in the undue hardship
analysis.’” Barnett, 535 U.S. at 395 (citation omitted).
The United States Supreme Court vacated the Ninth Circuit’s
decision. Barnett, 535 U.S. at 406. The Court rejected the
airline-defendant’s contention that a seniority system always
trumps an accommodation, noting, “the fact that the difference
in treatment violates an employer’s disability-neutral rule
cannot by itself place the accommodation beyond the [ADA]’s
potential reach.” Barnett, 535 U.S. at 397. Rather, it held
the ADA sometimes “requires preferences in the form of
‘reasonable accommodations’ . . . [to ensure that people] with
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disabilities [have] the same workplace opportunities [as] those
without disabilities[.]” Id. (emphasis omitted).
The Court then established a burden-shifting framework,
under which a plaintiff-employee “need only show that an
‘accommodation’ seems reasonable on its face, i.e., ordinarily
or in the run of cases” (emphasis omitted). Barnett, 535 U.S.
at 401 (citations omitted). Failing that, the plaintiff
“remains free to show that special circumstances warrant a
finding that . . . the requested ‘accommodation’ is ‘reasonable’
on the particular facts.” Barnett, 535 U.S. at 405. “Once the
plaintiff has made this showing, the [defendant-employer] then
must show special (typically case-specific) circumstances that
demonstrate undue hardship in the particular circumstances,” the
Court stated. Barnett, 535 U.S. at 402 (citation omitted).
Applying this test, the Court held that the plaintiff-
employee could not show the requested accommodation was
“reasonable on its face” because, ordinarily, a seni