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Kawatachi v. The Parrish Collection, LLC

2026-10-28

Authorities cited

Opinion

majority 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 statutoryinterpretation 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 plaintiffemployee could not show the requested accommodation was

“reasonable on its face” because, ordinarily, a seniority system

would prevail. Barnett, 535 U.S. at 403. However, the Court

vacated the lower court’s judgment and remanded to allow the

plaintiff-employee to “show that special circumstances warrant a

finding that, despite the presence of a seniority system (which

the ADA may not trump in the run of cases), the requested

‘accommodation’ is ‘reasonable’ on the particular facts.”

Barnett, 535 U.S. at 405.

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In adopting Barnett, the Seventh, Eighth, and Eleventh

Circuits require plaintiffs to show only that an accommodation

is “reasonable on its face,” without clearly addressing whether

plaintiffs who fail to make that showing may instead demonstrate

that the accommodation is “reasonable on the particular facts.”

See Oconomowoc, 300 F.3d at 783-87; One Love, 93 F.4th at 432-33; Schaw, 938 F.3d at 1265-66.

The Ninth Circuit falls into the third camp. Unlike the

courts in the preceding camp, it fully embraced Barnett’s

burden-shifting framework in Giebeler, but with a twist. In

Giebeler, the plaintiff was unemployed because of his

disability. 343 F.3d at 1144. Accordingly, he was unable to

“meet the minimum financial qualifications of the apartment

complex where he sought an apartment.” Id. His mother,

however, did meet those standards, and although she offered to

rent the apartment so that he could live in it, the owners of

the apartment complex denied the application, citing their

policy prohibiting cosigners. Id. In considering whether the

FHAA required the apartment owners to reasonably accommodate

Giebeler’s disability by waiving the no-cosigner policy, the

court relied on Barnett and Vinson v. Thomas, 288 F.3d 1145,

1153 (9th Cir. 2002), a Rehabilitation Act case that articulates

a slightly distinct burden allocation: plaintiffs must initially

show the requested accommodation is “possible,” whereupon the

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burden shifts to defendants to show that it is unreasonable.

Giebeler, 343 F.3d at 1156.

Thus, the Ninth Circuit did not choose between Barnett or

Vinson, but instead applied both, concluding that the plaintiff

in Giebeler satisfied his initial burden under either approach.

Giebeler, 343 F.3d at 1157 (“There is no need in this case . . .

to decide whether Vinson or Barnett state essentially the same

allocation of burdens or differ in a way likely to be outcome

determinative in some instances. Either description of the

burden allocation leads to the same result in this case:

[plaintiff]’s requested accommodation was reasonable.”)

Finally, the United States Courts of Appeals for the First,

Fourth, Fifth, Sixth, and Tenth Circuits comprise the fourth

camp. They require plaintiffs to prove reasonableness without

clearly distinguishing between whether the requested

accommodation must be “reasonable on its face” or “on the

particular facts,” or even requiring defendants, in turn, to

prove unreasonableness. Barnett, 535 U.S. at 401, 405; see

Summers v. City of Fitchburg, 940 F.3d 133, 139 (1st Cir. 2019);

Bryant Woods, 124 F.3d at 603–04; Elderhaven, Inc. v. City of

Lubbock, Tex., 98 F.3d 175, 178 (5th Cir. 1996); Davis v. Echo

Valley Condo. Ass’n, 945 F.3d 483, 490 (6th Cir. 2019); Courage

to Change Ranches Holding Co. v. El Paso Cnty., Colorado, 73

F.4th 1175, 1204 (10th Cir. 2023).

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State courts are only bound by United States Supreme Court

interpretations of federal law. We therefore adopt Barnett’s

burden-shifting framework in full, without further requiring

plaintiffs to show that an accommodation is possible. In other

words, a plaintiff-employee need only show that an accommodation

seems reasonable on its face, i.e., ordinarily or in the run of

cases. Barnett, 535 U.S. at 401. 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 then must show special

(typically case-specific) circumstances that demonstrate undue

hardship in the particular circumstances. Barnett, 535 U.S. at

402. This defines what plaintiffs must initially show to prove

the reasonableness factor.

C. Defendants may offer alternative accommodations to satisfy

their burden of proving unreasonableness.

On certiorari, Parrish also asserts that Robert’s requested

accommodation was unnecessary because the HCRC failed to dispute

its proposed alternative to conduct weekly house cleanings in

Robert’s absence. The HCRC contends that a genuine dispute

remains as to whether the proposed alternative would have

adequately assuaged Robert’s concerns about increased contact

with non-family members inside the property.

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While both parties raise fair points, their arguments lead

us to a different, more fundamental question: at what stage in

the burden-shifting framework should courts consider alternative

accommodations? Few courts have answered this question

directly, and those that have are not in agreement. The HCRC

directs our attention to Vorchheimer, 903 F.3d at 108, in which

the Third Circuit considered alternative accommodations as part

of the “necessary” factor.6 There, the court discussed two cases

to illustrate that 42 U.S.C. § 3604(f)(3)(B) requires courts to

consider alternative accommodations:

Two district-court decisions illustrate this consideration.

In one, a disabled tenant was unable to drive her

[disability]-accessible van over speed bumps. So it was

necessary that her building’s parking lot have one entrance

without a speed bump, but not that both of its entrances

lack speed bumps. See Resnick v. 392 Cent. Park W. Condo.,

No. 07-cv-1988, 2007 WL 2375750, at *2 (S.D.N.Y. Aug. 14,

2007). In the other case, a disabled couple needed on-site

parking. So it was necessary that this couple have one

parking spot, but not two. See Temple v. Hudson View Owners

Corp., 222 F.Supp.3d 318, 324 (S.D.N.Y. 2016). “While

having only one parking space may be less convenient for

Plaintiffs [than having two], the law does not require

defendants to provide the best possible accommodation” or

plaintiffs’ preferred accommodation. Id. When defendants

have already provided an adequate alternative, “[they] need

not adopt plaintiff’s preferred means of accommodation.”

Resnick, 2007 WL 2375750, at *2.

Vorchheimer, 903 F.3d at 108-09. The court also recognized that

“proffered alternatives must still satisfy” the “equal

opportunity to use and enjoy” element, stating: “[C]ourts must

weigh whether the tenant’s requested accommodation and the

6 Vorchheimer involved the dismissal of a complaint for failure to state a claim, not summary judgment. 903 F.3d at 104-05.

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landlord’s proposed alternative afford equal housing

opportunity.” Vorchheimer, 903 F.3d at 109 (“[A]ll the

proffered alternatives that afford equal opportunity to use and

to enjoy housing bear on whether a specific accommodation is

necessary.”)

The Eleventh Circuit disagrees with Vorchheimer. In

Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., the court

indicated that alternative accommodations may be “relevant to

the reasonableness determination, which asks whether the

requested accommodation ‘is both efficacious and proportional to

the costs to implement it,’” but not to necessity, “which asks

whether the requested accommodation ameliorates the disability’s

effects.” 765 F.3d 1277, 1289 (11th Cir. 2014) (citations

omitted).

But in Schaw, the Eleventh Circuit shifted course five

years later and held that courts “must consider first whether

the plaintiff’s own requested accommodation ‘seems reasonable on

its face’ before turning to consider a defendant’s objections

and counterproposals.” 938 F.3d at 1269 (emphasis added).

Schaw seems to assign the consideration of alternative

accommodations as part of the unreasonableness factor, which is

the defendant’s burden, thus conflicting with Bhogaita.

We hold that defendants are allowed to offer alternative

accommodations as part of their burden to prove the unreasonable

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factor. We therefore adopt the following burden-shifting

framework based on Giebeler, 343 F.3d at 1155: To prove that an

accommodation is necessary, “[p]laintiffs [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.” Smith & Lee, 102 F.3d at 795. 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.” Mobile Home II,

107 F.3d at 1380.

To prove that an accommodation is reasonable, plaintiffs

also bear the initial burden to show that an accommodation is

“reasonable on its face, i.e., ordinarily or in the run of

cases” Barnett, 535 U.S. at 401 (emphasis omitted). Failing

that, plaintiffs are permitted to show that an accommodation is

“‘reasonable’ on the particular facts.” Barnett, 535 U.S. at

405.

Upon plaintiffs making that showing, the burden then shifts

to defendants to demonstrate that the requested accommodation is

unreasonable. Barnett, 535 U.S. at 402. Courts may consider a

defendant’s alternative accommodation when determining whether a

plaintiff’s requested accommodation is unreasonable.

Because the ICA and the circuit court applied different

standards and because neither party addressed the framework set

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forth above, we remand to the circuit court to allow the parties

to apply this framework.

D. There is no standalone liability for failure to engage in

an “interactive process” under HRS § 515-3(a)(9).

Finally, although the ICA did not reach the issue, Parrish

and the HCRC urge us to address whether HRS § 515-3(a)(9)

requires housing providers to engage in an “interactive process”

and whether failure to do so gives rise to standalone liability.

We hold that neither HRS § 515-3(a)(9) nor HAR § 12-46-306(a)(1)

and (3) require housing providers to engage in an interactive

process. Therefore, there can be no standalone liability on

that basis.

We begin our analysis with the text of the statute.

Neither HRS § 515-3(a)(9) nor 42 U.S.C. § 3604(f)(3)(B) mentions

“interactive process,” nor is it referenced elsewhere in those

statutes. A plain reading of HRS § 515-3(a)(9) suggests it

encourages housing providers to engage with tenants by

requesting verifying information when a “disability” or

“disability-related need for an assistance animal is not readily

apparent,” while at the same time limiting certain inquiries.

HRS § 515-3(a)(9) (stating that if a “disability” or

“disability-related need for an assistance animal is not readily

apparent, an owner or other person engaging in a real estate

transaction may request” verifying information (emphasis

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added)). For example, housing providers “shall not request

medical records or access to health care providers” to confirm

that a person has a disability and “shall not inquire as to the

diagnosis, nature, or severity of [a] person’s disability.” HRS

§ 515-3(a)(9).

Analogously, while HAR § 12-46-306 does not expressly

mention “interactive process,” subsection 306(a)(1) encourages

housing providers to engage with tenants when a “disability” or

“disability-related need for an assistance animal is not readily

apparent” by requesting verifying information, while also

discouraging inquiries similar to those barred under HRS § 515-3(a)(9). HAR § 12-46-306(a)(1) (stating that if a “disability”

or “disability related need for an assistance animal is not

readily apparent, an owner or other person engaging in a real

estate transaction may request” verifying information but “may

not request medical records or access to health care providers

and may not inquire as to the diagnosis, nature, or severity of

the person’s disability” (emphasis added)).

The HCRC contends that requiring “housing providers to

engage in an interactive process only when a tenant’s requested

accommodation involves an ‘assistance animal’ would go directly

against the legislature’s intent that HRS Chapter 515 be

liberally construed.” But this argument is unpersuasive.

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HRS § 515-3(a)(9) expressly provides two scenarios where

engagement between housing providers and tenants is encouraged.

But in both, engagement is not required. First, when a

“disability is not readily apparent,” and second, when the

“disability-related need for an assistance animal is not readily

apparent,” the statute uses permissive language (“may”) to allow

housing providers to request verifying information. But it also

employs mandatory language (“shall”) to bar certain inquiries.

Thus, the text of HRS § 515-3(a)(9) does not affirmatively

compel housing providers to interact with tenants. Where there

is no ambiguity in a statute, it is our duty to give effect to

its plain and obvious meaning.

In addition, the principle of expressio unius est exclusio

alterius further supports our conclusion.7 In contrast with HAR

§ 12-46-306, the HCRC promulgated HAR § 12-46-187, part of the

implementing regulations of Hawaiʻi’s fair employment law (HRS

Chapter 378),8 which requires employers “to initiate an

interactive process” to determine appropriate accommodations for

disabled employees. HAR § 12-46-187 states:

7 Expressio unius est exclusio alterius is “[a] canon of construction holding that to express or include one thing implies the exclusion of the other[.]” Expressio unius est exclusio alterius, Black’s Law Dictionary (12th ed. 2024).

8 Like HRS Chapter 515, HRS Chapter 378 does not expressly mention “interactive process” anywhere in the statute. We are also not aware of any statute, and the Commission has cited none, where the legislature mandates an “interactive process.”

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§ 12-46-187. Failure to make reasonable accommodation,

Interactive process.

(b) To determine the appropriate reasonable accommodation,

it shall be necessary for an employer or other covered

entity to initiate an interactive process, after a request

for an accommodation, with the person with a disability in

need of the accommodation. A request for a reasonable

accommodation may be made by a third-party, such as a

healthcare professional, acting on behalf of the individual

in need of an accommodation. This process shall identify

the precise limitations resulting from the disability and

potential reasonable accommodations that could overcome

those limitations.

HAR § 12-46-187(b) (emphasis added); see Gima v. City & Cnty. of

Honolulu, 156 Hawaiʻi 78, 97, 569 P.3d 1262, 1281 (2025)

(affirming that HAR § 12-46-187 required the employer to “engage

in a good faith interactive process when [the plaintiffemployee] requested a reasonable accommodation”).

The HCRC could have and did not include identical language

in HAR § 12-46-306 requiring housing providers to initiate an

“interactive process” with tenants. “Because ‘courts will not

presume an oversight on the part of the [agency] where such

presumption is avoidable,’ this omission must be seen as

intentional.” Tamashiro v. Dep’t of Hum. Servs., 112 Hawaiʻi

388, 416, 146 P.3d 103, 131 (2006) (Pollack, J., dissenting);9

see Yonek v. Shinseki, 722 F.3d 1355, 1359 (Fed. Cir. 2013)

(“Where [an agency] includes particular language in one section

of a [regulation] but omits it in another . . ., it is generally

9 Justice Pollack was specifically referring to the legislature, but this reasoning is also applicable to agencies.

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presumed that [the agency] acts intentionally and purposely in

the disparate inclusion or exclusion.”).

We further note that the Third, Sixth, and Ninth Circuits

have declined to read an “interactive process” requirement into

the FHAA. See Howard, 988 F.3d 1185, 1192 (9th Cir. 2021)

(concluding “there is no ‘standalone’ liability under the FHAA

for a landlord’s failure to engage in an ‘interactive

process’”); Groner v. Golden Gate Gardens Apartments, 250 F.3d

1039, 1047 (6th Cir. 2001) (citation omitted) (“[W]hile some

courts have imposed an obligation on employers and employees to

engage in an interactive process, there is no such language in

the Fair Housing Act”); Lapid-Laurel, 284 F.3d at 456 (citation

omitted) (“Therefore, we hold that notwithstanding the

‘interactive process’ requirement that exists in . . . the

employment context under the Rehabilitation Act, . . . the FHAA

imposes no such requirement”). Just as the Ninth Circuit in

Howard, 988 F.3d at 1192, “lack[ed] the authority to expand the

bases for liability adopted by Congress” under the FHAA, we too,

along with the HCRC, lack the authority to expand the bases for

liability adopted by the Hawaiʻi State Legislature under HRS §

515-3(a)(9).

Two courts, the First and Seventh Circuits, have taken

slightly different approaches, linking a landlord’s failure to

engage with a tenant to the final element of a reasonable

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accommodation claim: whether the landlord refused to make the

requested accommodation. Astralis Condo. Ass’n v. Sec’y, U.S.

Dep’t of Hous. & Urb. Dev., 620 F.3d 62, 67-68 (1st Cir. 2010);

see Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 895 (7th

Cir. 1996) (noting that if a landlord knows of a tenant’s

disability but questions the extent of its impact, it is

incumbent on the landlord to ask for more information). But

these courts did not carve an independent basis for liability

out of the landlords’ failure to inquire; rather, they grounded

their decisions in a violation of 42 U.S.C. § 3604(f)(3)(B).

Jankowski, 91 F.3d at 895 (“[The landlords] had a duty to make a

reasonable accommodation. They did not make a reasonable

accommodation, so they violated the FHA.”) As the Ninth Circuit

noted in Howard, “[t]hese circuits have found that the

interactive process matters only if it sheds light on whether

the elements of the statutory claim have been met.” 988 F.3d at

1193.

The HCRC’s decision in Ramos v. Beretania Hale, Ltd. also

held that a failure to engage in the interactive process did not

create per se liability under HRS § 515-3(a)(9).10 Docket No.

99-001-H-D, at 5-8 (HCRC Feb. 28, 2000) (Final Decision and

Order). We agree with the public policy goal articulated in

10 This case is available at http://labor.hawaii.gov/hcrc/contested-casedecisions/ [https://perma.cc/5GX3-DXJL]. The Commission cited HRS § 515-13(1), which we believe was in error.

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Ramos that landlord-tenant engagement serves “to encourage

settlement . . . and possibly avoid litigation.” No. 99-001-HD, at 4.

But although we encourage parties to engage in an

interactive process, we hold that, under current Hawaiʻi law,

there is no standalone liability if there is a breakdown in such

engagement.

V. Conclusion

For these reasons, we affirm the ICA’s December 17, 2025,

judgment on appeal and remand to the circuit court for further

proceedings consistent with this opinion.

Eric Pililaau, /s/ Vladimir P. Devens Joey Badua, and

Catherine M. Lowenberg /s/ Sabrina S. McKenna for petitioner

/s/ Todd W. Eddins

Mark G. Valencia and

Alana S.D. Johnson /s/ Lisa M. Ginoza for respondents

/s/ Michelle L. Drewyer

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