There’s been an increased focus on providing special benefits to transgender individuals in the workplace. Consistent with that trend, on June 1, the Occupational Safety and Health Administration (OSHA) released “A Guide to Restroom Access for Transgender Workers.” Filed as “best practices,” the guide is not an OSHA standard or regulation but rather recommendations the agency hopes employers will follow in dealing with this thorny issue.
Background 29 C.F.R. § 1910.141 requires employers under OSHA’s jurisdiction to provide employees with sanitary and available toilet facilities so employees will not suffer the adverse health effects that can result if toilets are not available. OSHA has consistently interpreted the standard to require employers to allow employees prompt access to sanitary restrooms. Further, the agency states that employers may not impose unreasonable restrictions on employees’ use of restroom facilities. As a result, employers may not require certain employees—e.g., transgender individuals—to walk an excessive distance to use a particular restroom or wait an unreasonably long time to use the facilities.
New guidance In OSHA’s new guidelines, the “Model Practices” begin with the recognition that all employees should be permitted to use the restroom that corresponds with their gender identity. For example, a person who identifies as a man should be permitted to use the men’s restroom, and a person who identifies as a woman should be permitted to use the women’s restroom. Under the guidelines, employees, not the employer, should determine the most appropriate and safest restroom option.
The best practices also provide additional options that employees may—but are not required to—choose, including:- Single-occupancy gender-neutral unisex facilities; and
- Multiple-occupant gender-neutral restrooms with lockable single-occupant stalls.
- Regardless of the worksite’s layout, all employers must provide solutions that are safe and convenient and respect transgender employees.
Under the guidelines, employees may not be asked to provide medical or legal documentation of their gender identity to access gender-appropriate facilities. In addition, employees may not be required to use segregated restrooms that are away from other employees because of their gender identity or transgender status. Keep in mind that an employer attempting to require a transgender employee to use a specific restroom may violate Title VII of the Civil Rights Act of 1964, which makes it unlawful to “segregate” employees in any way that deprives them of equal employment opportunities. Moreover, several states, including Colorado, Delaware, Washington, and Vermont, and Washington, D.C., have their own regulations addressing the use of restrooms by transgender individuals. For example, Rule 4-802 of the DC Municipal Regulations prohibits discriminatory practices regarding restroom access. Under the rule, individuals have the right to use restrooms that are consistent with their gender identity, and single-stall restrooms must have gender-neutral signage. Finally, the new guidelines remind employers that they are prohibited from retaliating against employees for exercising their rights under the Occupational Safety and Health Act (OSH Act). Those rights include reporting a workplace health or safety concern to the employer, reporting an injury or illness, filing an OSHA complaint, and participating in an inspection or talking to an inspector. Presumably, if an employee reports an issue concerning the location of a particular restroom and transgender workers, the complaint would be considered protected, and the employer would be prohibited from retaliating against the employee for reporting the concern.
Bottom line As Bob Dylan opined long ago, “The times, they are a-changin.” Although the new guidelines do not have the force of an OSHA standard or regulation, they provide advice on what employers should consider in dealing with transgender workers. First, employees should decide which facilities are appropriate, and employers cannot be involved in that process. Second, employers must make sure they have appropriate restroom facilities (either single-occupant unisex bathrooms available to all employees or multiple-occupant, gender-neutral facilities with lockable single-occupant stalls and appropriate signage). What OSHA’s new recommendations fail to discuss, however, is the practical ramifications of implementing those practices in today’s workforce. Despite the fact that many employers have single-occupant unisex restrooms, many employees may have concerns about sharing a restroom with a transgender individual, regardless of what OSHA says. Hopefully, this issue will not develop into a major problem for most employers.
By Kevin C. McCormick
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