Throughout the years OSHA has promulgated a substantial set of regulations to improve overall health and safety in the workplace, including the requirement that employers provide employees with sexually-segregated sanitary toilet facilities. On June 1, 2015, the Occupational Safety and Health Administration (“OSHA”) issued a best practices guide for employers titled “A Guide to Restroom Access for Transgender Workers.” The publication’s core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.
In its publication OSHA acknowledged the potential questions employers will face regarding which facilities a transgender employee should use. According to OSHA, “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.” OSHA’s policy is based on the reasoning “that restricting employees to using only restrooms that are not consistent with their gender identify, or requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety.” Additionally, OSHA believes these restrictions can result in employees avoiding the use of restrooms while at work, which can lead to potentially serious physical injury or illness.
OSHA observed that the best employer policies provide various restroom options that the employee may choose, such as single-occupancy gender-neutral facilities and use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls. Moreover, employees cannot be required to use a segregated facility apart from other employees because of their gender identity or transgender status. OSHA’s best practices further advises employers that they cannot ask employees to provide medical or legal documentation of their gender identity.
Not only must employers be aware of OSHA’s standards, but they must also ensure their restroom access protocols do not violate state or federal anti-discrimination laws. Recently, the Equal Employment Opportunity Commission (“EEOC”) addressed restroom access for transgender employees and potential employer liability. In Lusardi v. McHugh, the EEOC found an employer liable for sex discrimination under Title VII when a manager corrected a transgender employee for using the common women’s restroom prior to her “final surgery” instead of the single gender-neutral restroom as agreed to in her transition plan. The EEOC held that employers cannot “condition access to restrooms, or other terms, conditions or privileges of employment, on the completion of certain medical steps that the [employer] itself has unilaterally determined will somehow prove the bona fides of the individual’s gender identity.” Likewise, a transgender employee cannot be denied access to the common restrooms used by other employees of the same gender identity on the basis that other employees may have negative reactions to allowing the employee to do so.
Although the EEOC in Lusardi encouraged employers to work with transgender employees to develop plans for workplace transitions, the EEOC cautioned employers to view any plan related to facility access as a “temporary compromise” and to understand that the employee retains the right under Title VII to use the restroom consistent with his or her gender identity.
Employers should review and update their workplace policies to ensure any policy regarding restroom access complies with the best practices recommended by OSHA, particularly allowing all employees to access the restroom corresponding to their gender identity. Moreover, employers should be cautious not to force transgender employees to use a separate restroom to appease objecting co-workers. Finally, employers should take steps to ensure their actions regarding restroom access for transgender employees do not place them at risk for claims under federal and state anti-discrimination laws.