Full Opinion

*** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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. 2 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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). 3 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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 4 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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 5 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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: 6 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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 7 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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. 8 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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 9 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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 10 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** “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 11 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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 12 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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. 13 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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.” 14 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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. 15 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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). 16 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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”). 17 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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). 18 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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 19 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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. 20 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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. 21 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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 22 *** FOR PUBLICATION IN WEST’S HAWAI‘I REPORTS AND PACIFIC REPORTER *** 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