OSHA and Transgender Employees
OSHA Declares Restroom Access for Transgender Employees is a Health and Safety Issue
The Department of Labor’s Occupational Safety and Health Administration (OSHA) recently issued guidelines for providing adequate restroom facilities for transgender employees. The core principle behind the guidelines is that all employees, including transgender employees, should have access to restrooms corresponding to their gender identity. Pursuant to OSHA’s sanitation standards, employers are required to provide employees with toilet facilities to protect employees from negative health consequences that arise when toilets are not available. OSHA sees bathroom access as a health and safety issue for transgender employees, as bathroom restrictions and concerns for personal safety may result in employees avoiding using the restroom entirely while at work.
Under OSHA’s recommendations, a person who identifies as a man should be permitted to use the men’s restrooms, and a person who identifies as a woman should be permitted to use the women’s restrooms. Additionally, no employee should be required to use a segregated facility separate from other employees because of gender identity or transgender status. OSHA’s suggested “best policies” include providing additional options such as single-occupancy gender-neutral (unisex) facilities and the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
OSHA also recommends that employees should not be asked to provide medical and legal documentation of their gender identity in order to have access to gender-appropriate facilities. Transitioning from one gender to another involves different steps for different individuals, and employers should recognize that questions may arise in the workplace about what facilities employees should use. OSHA defines a transgender individual as an individual whose internal gender identity is different from the sex they were assigned at birth.
While a violation of these recommendations would not be a legal violation at this time, employers should also take note of other laws, rules, and regulations that may be implicated when adequate restroom access is not provided for transgender employees. Restricted restroom access may open an employer up to liability under Title VII. For example, the EEOC found in April 2015 that the denial of restroom access to a transgender employee was evidence of sex discrimination under Title VII. The Office of Federal Contract Compliance Programs (OFCCP) has also announced it will require certain federal contractors to allow transgender employees to use restrooms consistent with their gender identity. Additionally, many states and municipalities have passed laws or ordinances pertaining to restroom access and gender identity. Employers with questions about the application of the OSHA recommendations or other federal, state, or local laws to their restroom facility policies should speak to an attorney.