HAR §12-46-318. Defenses

(a) Adverse impact. It may be a defense to a claim that a facially-neutral practice, policy, or action has the effect of discriminating against a person because of a protected basis for an owner, any other person, real estate broker, or salesperson charged with discrimination to establish that there is a business necessity for the practice, policy, or action. (b) Specific activity permitted. It may be a defense to a claim that a practice, policy, or action discriminates against a person because of a protected basis for an owner, any other person, real estate broker, or salesperson charged with discrimination to establish that the alleged discriminatory practice, policy, or action is specifically permitted under this subchapter or by sections 515-4 or 515-8, HRS. (c) Refusal to allow the use of a particular assistance animal. An owner or any other person engaging in a real estate transaction may refuse to 46-159 C allow a person with a disability the use of a particular assistance animal if: (1) The animal poses a direct threat to the health or safety of others and the animal's owner or handler takes no effective action to control the animal so that the threat is mitigated or eliminated; (2) The animal would cause substantial physical damage to the property of others that cannot be reduced or eliminated by a reasonable accommodation; (3) The presence of the assistance animal would pose an undue financial and administrative burden to the owner or person engaging in a real estate transaction; or (4) The presence of the assistance animal would fundamentally alter the nature of the operations of the owner or person engaging in a real estate transaction. The determination of whether an assistance animal poses a direct threat and whether the animal's owner or handler has taken effective action to control the animal so that the threat is mitigated or eliminated, must be based on an individualized assessment about the specific animal in question, such as the animal's current conduct or recent history of overt acts. The determination may not be based on the animal's species or breed. Factors to be considered include: the nature, duration and severity of the risk of injury; the probability that the potential injury will actually occur; whether reasonable modifications of rules, policies, practices, procedures, or services will reduce the risk; and whether the animal's owner has taken any action that has reduced or eliminated the risk, such as obtaining specific training, medication, or equipment for the animal. Denial of the use of a particular animal does not preclude a request to use a different animal. Example: 1,6-160 ( Michael, who lives in an apartment building that has a "no pets" policy, has a disability and requires the use of Spot, an emotional support dog. One day while Michael and Spot are riding in the elevator, Spot lunges and bites a guide dog owned by Cindy, who is blind and is in the elevator at the time. Spot therefore poses a direct threat to the health and safety of others. If the direct threat can be mitigated, for example by having Michael muzzle and hold Spot by a short leash when Spot is in common areas, and by having Michael and Spot refrain from riding in the same elevator and being in the same common areas as Cindy and her guide dog, Michael may continue to use Spot. However, if the direct threat from Spot cannot be mitigated, or if Spot's continued presence would cause an undue financial and administrative burden, the apartment manager may deny Michael's use of Spot, though Michael may then request the use of a different emotional support animal." [Eff 10/15/93; am 10/6/13; comp J (Auth: HRS §§368-3, 515-9(7)) (Imp: HRS §§515-1, 515-2, 515- 3, 515-4, 515-5, 515-6, 515-7, 515-9, 515-16, 515-17) t;6-161 r ( DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS Amendments to and compilation of Chapter 12-46, Hawaii Administrative Rules, on the Summary Page dated November 19, 2024, were adopted on November 19, 2024, following a public hearing held on November 4, 2024, after public notices were given in the Honolulu Star- Advertiser, Hawaii Tribune Herald, West Hawaii Today and The Garden Island on September 26, 2024 and September 30, 2024, and the Maui News from September 26, 2024 through October 2, 2024. These rules shall take effect ten days after filing with the Office of the Lieutenant Governor. APPROVED AS TO FORM: Deputy Attorney General Jade T. Butay Director of Labor and Industrial Relations APPROVED: Governor State of Hawai'i JUL - 9 2025 Filed