By Scott Coghlan*
The United States Department of Labor’s Occupational Safety and Health Administration (“OSHA”) released a new best practices guide on June 1, 2015, concerning transgender workers’ use of workplace restrooms.
OSHA’s sanitation standard already requires that all covered employers provide employees with sanitary and available toilet facilities. Generally, OSHA prohibits employers from placing unreasonable restrictions on restroom use, such as restroom facilities that are an unreasonable distance from an employee’s worksite. While many employers provide separate restrooms for men and women, OSHA does not require it. With increasing frequency, employers that provide separate restrooms are facing the issue of which restroom transgender employees should use.
Transgender individuals are those who do not identify with the gender they were assigned at birth – for example, a transgender woman may have male listed as the gender on her birth certificate and have been raised as a boy, but internally identifies as a woman. Transgender individuals may “transition” to live life as the gender they identify with in a number of different ways, including through changes to appearance, name changes, medical procedures, and changes to official identification documents.
OSHA published its new best practices guide, titled “A Guide to Restroom Access for Transgender Workers,” at the request of the National Center for Transgender Equality. With the new guidelines, OSHA seeks to ensure that transgender individuals feel safe and comfortable when using workplace restrooms. OSHA suggests that employers allow employees to use the restroom for the gender with which they identify. Thus, a transgender man should be permitted to use the men’s restroom. OSHA also offered alternative suggestions, including providing a single-occupancy, gender-neutral restroom or multiple-occupant, gender-neutral restrooms with lockable single-occupant stalls. Additionally, OSHA cautions against segregating or singling out transgender employees by requiring those employees to use restrooms that do not conform with their gender identity or by requiring transgender employees to use only specific or gender-neutral restrooms when gender-specific restrooms are available. Finally, OSHA’s new guidelines state that employees should not be required to present medical or legal documentation of their gender identity in order to have access to restroom facilities for the gender with which they identify.
OSHA’s guidelines do not place any legal requirements on employers to follow them. However, employers should keep in mind that the Equal Employment Opportunity Commission (the “EEOC”) and other agencies have interpreted Title VII’s prohibition of gender discrimination to extend to discrimination based on gender identity and transgender status. Recently, the EEOC ruled that prohibiting a transgender person from accessing restrooms for his or her gender identity constituted direct evidence of discrimination, even though the transgender person had not undergone any medical procedure to “transition.” Additionally, several states already have laws in place concerning transgender individuals’ rights to access restrooms corresponding to their gender identity.
*Scott Coghlan practices in all areas of workplace safety law. For more information about OSHA’s new best practices guide and OSHA in general, please contact: Scott Coghlan | sc@zrlaw.com | 216.696.4441
