It's Not a Rule, But...OSHA's Guidance on Transgender Restroom Issues
June 12, 2015 by Jason C. Taylor, Partner
Recently, OSHA formed an alliance with the National Center for Transgender Equality (NCTE) to raise awareness for issues related to transgender employees (The agreement can be seen at https://www.osha.gov/dcsp/alliances/ncte/ncte_20150427_final.html). Among the key issues associated with the alliance was restroom access for transgender employees. On June 1, 2015, OSHA issued its Guide to Restroom Access for Transgender Workers (https://www.osha.gov/Publications/OSHA3795.pdf). The guide sets out that a person’s decision to use a particular restroom can be based on that person’s gender identity as opposed to the gender a person was born as. Acceptable alternatives to the traditional Male/Female restrooms include single-occupant, gender neutral restrooms or gender neutral restrooms with lockable individual stalls. Where the traditional restroom facilities exist, though, the employee can choose which one to use to have the most appropriate and safest option.
This guide is not law or regulation. OSHA acknowledges this at the end of the publication. However, the guide references EEOC interpretations and precedent and laws from six states or jurisdictions (Colorado, Delaware, District of Columbia, Iowa, Vermont and Washington) addressing gender identity and equality. Further, although OSHA’s tie to this issue seems tenuous, OSHA asserts its sanitation standard gives it the authority to address what it calls “unreasonable restrictions” by an employer as to toilet facilities.
There is a laudable goal of workplace equality behind the alliance and the restroom guide. There will also be abuse of the protections set out for improper means, as well as issues that may arise related to harassment or other poor conduct. It will be important for employers to find appropriate middle ground in the development and application of policies to comply with the rules and avoid negative audit findings or complaints.
Should you need assistance with those efforts, we are here to help.
Jason C. Taylor