Hawaiʻi Fair Housing Accommodations: Burden Shifting and No Standalone Interactive-Process Liability

1. Introduction

This decision establishes a structured framework for evaluating disability-related housing accommodation requests under HRS § 515-3(a)(9). It also holds that Hawaiʻi’s existing fair housing statute and regulations do not impose standalone liability for a housing provider’s failure to participate in an “interactive process.”

The dispute arose during the COVID-19 pandemic. Robert A. Fahn, who had heart disease, and Brenda A. Fahn sought suspension of a lease provision requiring weekly housekeeping visits. They maintained that admitting cleaning personnel into their home created heightened health risks for Robert. The property management defendants, collectively described in the opinion as “Parrish,” rejected a complete waiver and proposed cleaning while the family was absent.

The plaintiff was Marcus L. Kawatachi, acting in his official capacity as Executive Director of the Hawaiʻi Civil Rights Commission (“HCRC”), on behalf of the Fahns. The defendants included The Parrish Collection entities, Jonathan D. Parrish, Simone McCaffrey, and a trustee associated with the property.

The central questions were whether the requested accommodation could qualify as necessary and reasonable, how the parties’ evidentiary burdens should be allocated, when a landlord’s proposed alternatives should be considered, and whether failure to engage in accommodation discussions independently violates state fair housing law.

2. Background and Procedural History

The accommodation request and termination of the tenancy

The Fahns moved from Colorado to Kauaʻi in August 2020, partly because Kauaʻi then had relatively few COVID-19 cases. Their rental agreement required weekly cleaning by Parrish’s housekeeping staff, at the tenants’ expense.

Shortly after moving in, Brenda expressed concern about housekeeping personnel entering the property and explained Robert’s elevated risk of hospitalization or death if he contracted COVID-19. In November, the Fahns’ physician expressly requested suspension of the cleaning requirement because of Robert’s heart disease. Robert submitted a formal accommodation request as well.

The Fahns’ attorney subsequently demanded that Parrish stop enforcing the provision and provide monetary relief. Parrish rejected those demands, described its cleaning protocols, and suggested that the family leave the property during cleaning. It warned that failure to comply with the lease would result in termination. Parrish then terminated the tenancy and filed a summary possession complaint. The Fahns vacated at the end of December 2020.

Administrative and judicial proceedings

The Fahns complained to the HCRC, alleging both failure to accommodate and failure to engage in an interactive process. After investigation, the HCRC found reasonable cause to believe discrimination had occurred. Conciliation failed, and litigation followed. That administrative reasonable-cause finding was not a final judicial determination of liability.

The circuit court granted Parrish’s motion to dismiss or, alternatively, for summary judgment, concluding that the requested accommodation had not adequately been shown to be reasonable and necessary. It also rejected independent interactive-process liability.

The Intermediate Court of Appeals (“ICA”) treated the ruling as summary judgment because the circuit court had considered materials outside the pleadings. In Kawatachi v. Parrish Collection, LLC, it vacated the judgment, reasoning that Parrish had not adequately negated the relevant elements of the accommodation claim. It did not decide the interactive-process issue.

The supreme court affirmed the ICA’s judgment vacating summary judgment, but supplied a new analytical framework for proceedings on remand and resolved the previously unanswered interactive-process question.

3. Summary of the Opinion

The court announced four principal conclusions:

1. A five-element accommodation claim applies. A plaintiff must establish a qualifying disability, the defendant’s actual or constructive knowledge, an accommodation that may be necessary for equal housing opportunity, its reasonableness, and the defendant’s refusal.
2. Reasonableness is assessed through burden shifting. The plaintiff must initially show that the accommodation is reasonable ordinarily or, alternatively, on the particular facts. The defendant must then demonstrate that it is unreasonable in the circumstances.
3. Alternative accommodations belong at the defendant’s stage. Courts may consider a housing provider’s counterproposal when evaluating whether the tenant’s requested accommodation is unreasonable.
4. No standalone interactive-process claim exists under current housing law. Failure to discuss accommodations can illuminate the statutory claim, but does not independently establish liability.

The court did not decide that the Fahns were entitled to a cleaning waiver or that Parrish had discriminated. It remanded so that the parties and circuit court could apply the newly articulated framework.

4. Statutory Foundation and Interpretive Approach

A remedial housing statute tied to federal protections

HRS Chapter 515 prohibits discrimination in real estate transactions. Section 515-3(a)(9) specifically prohibits refusing reasonable changes to rules, policies, practices, or services when those changes may be necessary to afford a person with a disability an equal opportunity to use and enjoy housing. HAR § 12-46-306(a)(3) supplies a parallel regulatory prohibition.

The court emphasized that both the statute and implementing regulations call for liberal construction toward eliminating discrimination. It also examined Act 171 of 1992, enacted to bring Hawaiʻi’s protections into substantial equivalence with the federal Fair Housing Amendments Act (“FHAA”). Maintaining that equivalence supports the HCRC’s federal certification and funding.

Federal decisions therefore play a particularly important interpretive role. Nevertheless, the court did not treat Ninth Circuit decisions as binding. It selected among competing federal approaches, adopting the United States Supreme Court’s accommodation framework rather than automatically following every feature of regional circuit precedent.

Interpretive precedents

• Sierra Club v. Dep't of Transp. supplied the rule that statutory interpretation is reviewed de novo.
• State v. Wheeler supplied the text-first method: apply clear statutory language according to its plain meaning, while using context and legislative history where ambiguity exists.
• French v. Hawaii Pizza Hut, Inc. illustrated Hawaiʻi’s established practice of consulting analogous federal disability law when interpreting state discrimination protections. The court distinguished that employment-law analogy from the stronger statutory and regulatory directives supporting federal conformity in housing law.
• Helen L. v. DiDario appeared in a terminology footnote explaining the transition from “handicap” to “disability.” Its relevance was linguistic and respectful usage, not allocation of proof.

5. The Accommodation Framework

A. The five elements

The court adopted the framework in Howard v. HMK Holdings, LLC, drawing on Dubois v. Ass'n of Apartment Owners of 2987 Kalakaua. A plaintiff must demonstrate:

1. A disability within the applicable statutory definition;
2. The defendant knew, or reasonably should have known, of that disability;
3. The requested accommodation may be necessary to provide equal opportunity to use and enjoy the dwelling;
4. The accommodation is reasonable; and
5. The defendant refused the accommodation.

Dubois v. Ass'n of Apartment Owners of 2987 Kalakaua and United States v. California Mobile Home Park Mgmt. Co., 107 F.3d 1374 (9th Cir. 1997), also support an essential methodological point: accommodation disputes require individualized, fact-specific assessment. A lease provision’s general legitimacy does not settle whether an exception is required for a particular tenant.

B. Necessity: a disability-related connection, not absolute indispensability

Necessity concerns the relationship between the disability, the challenged housing policy, and the requested change. The tenant must initially show that, without accommodation, the tenant likely would be denied an equal opportunity to enjoy the housing.

The court acknowledged decisions employing demanding descriptions of necessity:

• Vorchheimer v. Philadelphian Owners Ass'n described necessity using terms such as indispensable and essential, while linking the inquiry to the particular tenant’s housing needs.
• Cinnamon Hills Youth Crisis Ctr., Inc. v. Saint George City similarly described something necessary as something that cannot be done without.
• Bryant Woods Inn, Inc. v. Howard Cnty., Md. required the proposed accommodation to directly ameliorate an effect of the disability.

But the court resisted converting those formulations into an absolute-indispensability requirement. Following Hollandale Apartments & Health Club, LLC v. Bonesteel, it emphasized the statutory phrase “may be necessary.” Requiring proof that the tenant literally could not occupy the home without the accommodation would undermine the law’s remedial purpose.

The causal requirement comes principally from Giebeler v. M & B Assocs., Smith & Lee Assocs., Inc. v. City of Taylor, Mich., and the 1997 decision in United States v. California Mobile Home Park Mgmt. Co.: there must be a connection between the defendant’s policy and the disability-related housing disadvantage. A preference unrelated to disability is not enough.

C. Equal opportunity: substantive access, not identical treatment

Smith & Lee Assocs., Inc. v. City of Taylor, Mich. explains that equal opportunity concerns equal results rather than merely formal equality. Enforcing the same housekeeping provision against every tenant can therefore be insufficient if that provision creates a distinct disability-related barrier.

There is also a limit. Hubbard v. Samson Mgmt. Corp., drawing on Bryant Woods Inn, Inc. v. Howard Cnty., Md. and the 1994 decision in United States v. California Mobile Home Park Mgmt. Co., supports the proposition that accommodations exceeding what equal housing opportunity requires are not mandatory. The statute does not guarantee every tenant’s preferred arrangement.

D. Reasonableness: effectiveness balanced against burdens

Under Oconomowoc Residential Programs v. City of Milwaukee, an accommodation is reasonable when it is effective and proportional to its implementation costs. It can be unreasonable if it imposes undue financial or administrative burdens or fundamentally alters the relevant program.

Schaw v. Habitat for Human. of Citrus Cnty., Inc. describes this inquiry as balancing the parties’ needs. Accordingly, the tenant’s health-related interests matter, but so do substantiated management burdens. Neither a categorical demand for a waiver nor a categorical insistence on literal lease compliance substitutes for that assessment.

6. Precedents Governing the Burden of Proof

A. Why the court adopted Barnett

The central precedent is US Airways, Inc. v. Barnett, an employment case under the Americans with Disabilities Act (“ADA”). An employee sought reassignment to a mailroom position despite a seniority system favoring other employees. The United States Supreme Court rejected both the proposition that a neutral seniority rule necessarily defeated accommodation and the proposition that such a rule was merely another routine hardship consideration.

US Airways, Inc. v. Barnett established a more structured inquiry:

1. The plaintiff may show that the accommodation is reasonable on its face—ordinarily or in the usual run of cases.
2. If the accommodation is not ordinarily reasonable, the plaintiff may identify special circumstances making it reasonable in the particular case.
3. After that showing, the defendant must establish circumstances demonstrating undue hardship.

Although the seniority system ordinarily prevailed in US Airways, Inc. v. Barnett, the employee remained entitled to attempt a case-specific showing. Hawaiʻi adopted that complete framework for housing accommodations. This preserves both the ordinary-case route and the alternative route based on unusual facts.

B. The federal circuit split

The opinion’s extensive review of federal authority explains why selecting a precise framework mattered.

Giebeler v. M & B Assocs. was especially instructive. A prospective tenant could not meet an apartment complex’s financial requirements because of his disability. His financially qualified mother offered to rent the apartment for him, but the owners relied on a no-cosigner policy. The Ninth Circuit found the proposed accommodation reasonable under either burden formulation it considered. The Hawaiʻi court used that case to illustrate both the reach of accommodation duties into neutral policies and the need to clarify the governing proof structure.

The opinion also cited Quad Enters. Co., LLC v. Town of Southold, an unpublished decision, and Howard v. City of Beavercreek, among the authorities supporting a plaintiff’s initial necessity burden. It noted that the Second and D.C. Circuits had not resolved the particular reasonableness-allocation question. These citations supported the court’s distinction between broad agreement on necessity and disagreement on reasonableness.

7. Alternative Accommodations: Relevant at the Defendant’s Stage

The timing of alternative-accommodation evidence is a significant part of the new rule. Parrish argued that its proposal to clean while the family was absent made the requested waiver unnecessary. The court declined to place that counterproposal within the tenant’s initial necessity showing.

Competing precedents

Vorchheimer v. Philadelphian Owners Ass'n treated adequate alternatives as relevant to necessity. It used two examples:

• Resnick v. 392 Cent. Park W. Condo.: a tenant whose accessible van could not cross speed bumps needed one usable parking-lot entrance, not necessarily removal of speed bumps from both entrances.
• Temple v. Hudson View Owners Corp.: a couple’s need for on-site parking could be satisfied by one space rather than their preferred two.

Those examples demonstrate that the law does not necessarily require the best or preferred accommodation. But Vorchheimer v. Philadelphian Owners Ass'n located that issue at a different stage from the framework adopted here.

Bhogaita v. Altamonte Heights Condo. Ass'n, Inc. distinguished necessity—whether an accommodation ameliorates disability-related effects—from reasonableness, where alternatives could be relevant. Later, Schaw v. Habitat for Human. of Citrus Cnty., Inc. directed courts first to evaluate the plaintiff’s proposed accommodation before considering defense objections and counterproposals.

The Hawaiʻi rule

The court placed alternative accommodations within the defendant’s burden to demonstrate unreasonableness. This prevents a proposed alternative from automatically defeating the plaintiff’s threshold showing before the requested accommodation has been evaluated on its own terms.

The rule does not make tenant preference controlling, nor does it make every landlord counterproposal adequate. Here, the circuit court must assess the actual implications of cleaning while the family is absent, including whether that proposal addresses the disability-related concern. The supreme court made no medical or factual finding resolving that question.

8. No Standalone Duty to Conduct an Interactive Process

A. Text and regulatory structure

Neither HRS § 515-3(a)(9) nor the applicable housing regulations expressly require an interactive process. The statute says a provider may request verification when a disability or disability-related need for an assistance animal is not apparent. Conversely, it uses mandatory language to prohibit certain intrusive inquiries.

The court treated that contrast as deliberate. Permission to seek information does not itself create a mandatory negotiation procedure.

Employment regulations supplied a revealing comparison. HAR § 12-46-187(b) expressly requires employers to initiate an interactive process after an accommodation request. Gima v. City & Cnty. of Honolulu confirms that employment-law requirement. The absence of equivalent language in the housing regulations supported the conclusion that the court should not insert it.

The court also invoked expressio unius est exclusio alterius: express inclusion in one provision can support an inference of intentional exclusion from another. It drew support from the dissent quoted in Tamashiro v. Dep't of Hum. Servs. and from Yonek v. Shinseki. These authorities reinforced the inference from differing regulatory language; the quoted dissent was not presented as a controlling majority holding.

B. Federal and administrative precedents

• Howard v. HMK Holdings, LLC expressly rejects standalone FHAA liability for failure to engage in an interactive process.
• Groner v. Golden Gate Gardens Apartments and Lapid-Laurel, L.L.C. v. Zoning Bd. of Adjustment of Twp. of Scotch Plains likewise decline to import an employment-style interactive-process requirement into fair housing law.
• Astralis Condo. Ass'n v. Sec'y, U.S. Dep't of Hous. & Urb. Dev. and Jankowski Lee & Assocs. v. Cisneros recognize that a landlord’s failure to seek clarification or engage with a tenant can inform whether the landlord refused a required accommodation. They do not establish a separate procedural cause of action.
• Ramos v. Beretania Hale, Ltd., an HCRC decision, had already rejected per se liability for failure to engage. Its endorsement of dialogue as a means of settlement and avoiding litigation remained persuasive.

The distinction is between evidence and an independent claim. A provider’s silence or refusal to discuss a request may help establish unlawful refusal to accommodate. But unsuccessful dialogue, by itself, does not establish housing discrimination when the substantive elements are absent. Equally, participation in discussions does not excuse an otherwise unlawful refusal.

C. Verification remains subject to privacy limits

The decision does not authorize unrestricted investigation of a tenant’s health. When verification is permitted, the statute prohibits demands for medical records or access to health care providers and inquiries into the diagnosis, nature, or severity of the disability. The opinion thus distinguishes permissible verification from intrusive medical inquiry.

9. Summary Judgment and the Limits of the Decision

The allocation of proof at trial must be distinguished from the burden on a party seeking summary judgment.

• Fujimoto v. Au requires independent appellate review and consideration of the evidence in the nonmoving party’s favor.
• French v. Hawaii Pizza Hut, Inc. separates the movant’s initial production burden from its continuing burden of persuasion. The opponent must identify specific factual disputes only after the movant satisfies its initial burden.
• Ralston v. Yim allows a movant to negate an essential element or demonstrate that the opponent cannot prove it at trial, but generally prevents reliance solely on missing evidence before discovery has concluded.

Accordingly, the plaintiff’s initial substantive burden does not automatically entitle a defendant to early judgment merely by asserting that the plaintiff’s evidence is insufficient.

The supreme court affirmed the result reached by the ICA, while explaining that neither the lower courts nor the parties had applied the newly announced framework. Remand therefore permits properly structured consideration of necessity, reasonableness, defense burdens, and alternatives.

No damages were awarded by this opinion, and the court did not resolve the ultimate accommodation claim. Its rejection of standalone interactive-process liability does not dispose of the separate claim that Parrish unlawfully refused a reasonable and necessary accommodation.

10. Impact on Housing Discrimination Law

For tenants and enforcement agencies

The decision clarifies what an accommodation request must establish: a disability-related barrier, a causal explanation of how the requested change addresses it, and an initial showing of reasonableness. Importantly, a request that is unusual is not necessarily defeated; special circumstances can make it reasonable on the particular facts.

For housing providers

Providers retain the ability to establish undue financial or administrative burdens, fundamental alteration, or the significance of an effective alternative. But a neutral lease term is not categorically immune from accommodation. Providers should develop specific evidence rather than rely only on the existence of a contractual obligation.

Although dialogue is not independently compulsory under the current housing provisions, it remains practically valuable. It can clarify needs, identify workable solutions, and create evidence bearing on the substantive claim.

For courts and future cases

The framework should influence disputes involving assistance animals, parking, access policies, occupancy practices, and other disability-related exceptions—not merely pandemic precautions. Its principal contribution is procedural clarity without abandoning individualized assessment.

The decision also preserves a distinction between housing and employment law. The express interactive-process requirement governing employment cannot simply be transplanted into housing litigation. Any future express housing requirement would require examination of a changed legal framework rather than assumption that one already exists.

Important questions remain fact-dependent: what evidence adequately establishes a particular health-related need, when administrative burdens become undue, and whether a proposed alternative truly addresses the tenant’s disability-related disadvantage.

11. Complex Concepts Simplified

Reasonable accommodation

A disability-related exception or adjustment to a housing rule or service that is effective without imposing legally excessive burdens.

Prima facie case

The initial showing of the essential elements needed to support a discrimination claim.

Necessity

The connection between the requested change and equal housing opportunity. The statute asks whether an accommodation may be necessary, not whether it is absolutely indispensable.

Burden shifting

A sequence of proof: the tenant first supports the accommodation’s necessity and reasonableness; after the required showing, the provider must demonstrate unreasonableness.

Interactive process

Discussion aimed at understanding disability-related limitations and identifying suitable accommodations. In this housing context, failure to participate is not independently actionable.

Summary judgment

A decision without trial, available only when no genuine dispute over a material fact remains and the moving party is legally entitled to prevail.

De novo review

Independent appellate consideration without deference to the lower court’s legal conclusion.

Standalone liability

Liability based on a particular failure alone, without proving the separate elements of the underlying accommodation claim.

12. Conclusion

The opinion gives Hawaiʻi fair housing law a clear accommodation framework: tenants initially establish disability-related necessity and reasonableness; providers then demonstrate unreasonableness, with alternatives considered at that stage. Reasonableness can arise either ordinarily or from the particular facts.

At the same time, the court draws a firm boundary: current housing law encourages dialogue but does not create an independent claim for failure to engage. The remand leaves the Fahns’ substantive discrimination claim unresolved while supplying the standards that must govern its determination.