Transgender rights have been receiving a considerable amount of media attention this week, most of which has been sparked by the magazine Vanity Fair featuring a cover story about “Keeping up with the Kardashians” star and former Olympian Bruce Jenner as a trans woman (Caitlyn Jenner). On the same day that the cover story was released, the Occupational Safety and Health Administration (OSHA) published a Best Practices Guide to Restroom Access for Transgender Workers.
The OSHA guide estimates that 700,000 adults in the United States are transgender. According to the website for GLAAD (Gay and Lesbian Alliance Against Defamation), transgender is an “umbrella term for people whose gender identity and/or gender expression differs from what is typically associated with the sex they were assigned at birth.” The OSHA guide states that “many transgender people transition to live their everyday life as the gender they identify with.” Transitioning is a different process for everyone and can include social changes (new first name), medical steps, and changing identification documents.
A month ago, OSHA issued a news release stating that it had entered into an alliance with the National Center for Transgender Equality (NCTE) to provide NCTE affiliates and others with information and resources to help foster “safer and more healthful American workplaces.” The restroom guide was developed at the request of NCTE.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. Under OSHA’s Sanitation standard (1910.141), employers under the agency’s jurisdiction are required to provide employees with sanitary and available facilities, so that employees will not suffer the adverse health effects that can result if toilets are not available.
Addressing why restroom access is a health and safety matter, the guide states that when employers restrict employees to use only restrooms that are not consistent with their gender identity or by requiring them to use gender-neutral or other specific restrooms, employees may feel singled out or fear for their physical safety. In some cases, such restrictions can result in employees avoiding using restrooms entirely while at work, which according to the guide, “can lead to potentially serious physical injury or illness.”
The guide establishes the following best practices:
- Employees should be permitted to use facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms. The employee should determine the most appropriate and safest option for him- or herself.
- Employers can provide additional restroom options, which employees may choose, but are not required to use. These include: (1) single-occupancy gender-neutral (unisex) facilities; and (2) use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
- Employees are not required to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.
- Employers cannot require a transgendered employee to use a segregated facility apart from other employees because of their gender identity or transgender status.
OSHA makes it clear in its publication that the guide is not a standard or a regulation and that it creates no new legal obligations on employers. Notwithstanding OSHA’s disclaimer, the Equal Employment Opportunity Commission has taken the position that discrimination against an individual because that person is transgender is a violation of Title VII’s prohibition of sex discrimination in employment. And in Maryland, the Fairness for All Marylanders Act of 2014, which added gender identity as a protected class to Maryland’s laws against discrimination in employment, became effective in October of 2014. There are other state and local laws regarding restroom access as well.
Takeaway: While the guide is not a standard or a regulation, employers should consider employing OSHA’s best practices as a model for their workplace. This is especially true for employers in states (such as Maryland) or localities that have made gender identity a protected class.