We’ve talked about the rights of transgenders in the workplace before — specifically here, here, here. here and here. There is one thing we did not cover, however–because it’s something most of us probably take for granted: access to restrooms at work. To the surprise of many, the government agency taking up this cause is the Occupational Health and Safety Administration (OSHA). Why OSHA and what would it have to say about transgenders and access to restrooms at work? Find out by joining The EmpLAWyerologist after the jump…
Just over a month ago, the OSH-Administration issued a guidance outlining best practices regarding restroom access for transgender employees. The guidance can be boiled down to one core principle: all employees, including those who identify as transgender are entitled to access to restrooms matching their gender identity. You can find that guidance here. Most of us when we think of the OSH-Administration think about hazardous conditions or inspections. Why would the OSH-Administration involve itself in issues of restroom access for any employees?
The OSH-Administration sees it as a workplace safety issue. Under the OSH-Act, every employee has a right to a safe workplace. To the extent that a transgender employee does not feel s/he has access to a restroom facility that matches his or her gender identity, the employer may not be providing him or her a safe workplace — and, since the OSH-Act and the OSH-Administration are about safe workplaces — the OSH-Administration has something to say on the subject. Let’s dig a bit deeper to get a better understanding of the guidance.
OSHA’s sanitation standard, 29 CFR Section 1910.141 mandates that employers provide their employees prompt access to sanitary facilities to prevent adverse health conditions that can otherwise occur. (The OSHA guidance gives examples, which I will not detail here.) The standard also prohibits employers from imposing unreasonable restrictions on employee use of toilet facilities. Requiring an employee to use a restroom inconsistent with her or her gender identity, or segregating him or her by requiring that s/he use a gender-neutral or other specific restroom, which, “may make them fear for their physical safety”, are two examples of unreasonable restrictions under the standard. OSHA further states in its guidance that bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which in turn can “lead to potentially serious physical injury or illness”. But who determines the employee’s gender identity–and which restroom will match? According to the OSH-Administration (and, to most of us, common sense) –the employee. This same standard also states as a best practice that employees should not be required to provide medical or legal documentation of their gender identity to have access to gender-appropriate facilities. (Such a practice might also violate state or local laws that prohibit gender identity discrimination).
Other best practices that the OSH-Administration recommend under its new guidance include: a) considering single-occupancy gender-neutral facilities; b) use of multiple-occupant, gender-neutral restroom facilities with lockable, single-occupant stalls, which employees may, but do not have to use; c) written policies designed to ensure employee access to appropriate, sanitary restroom facilities.
Now, you may be thinking, it’s just a guidance, with best practices, not a law or regulation, right? So while it might be the right thing for an employer to do, the employer doesn’t really have to follow the guidance, does it? There’s no real consequence for not following it, is there? Think again! Remember when we first started looking at OSHA issues (click here for review). We looked then at the general duty clause of the OSH-Act. That’s the clause the requires employers to provide their workers a safe workplace. That is also the clause upon which the OSH-Administration often relies when it wants to issue citations. In the absence of another more specific regulation or section of the OSH-Act, the OSH-Administration will rely on the general duty clause when it feels that a certain condition caused or permitted by an employer deprives the worker of a safe workplace. Since the OSH-Administration has now clearly stated its position that providing appropriate restroom access to all workers — including transgenders–is included in this duty, it could very well issue a citation. Moreover, affected employees could report the matter to the OSH-Administration, potentially exposing an employer to significant financial penalties. (Remember also, that the employee would likely be protected under anti-retaliation provisions both under the OSH-Act and maybe state whistleblower laws as well.)
So, if you are an employer, or you are charged with managing employees, what might you do in the wake of this new guidance? You could start by:
- Implementing policies and procedures regarding transgender use of restroom facilities that: a) clearly state they will not require any transgender employee to use any specific restroom; and b) provide options for transgender employees;
- Train HR personnel and managers on all such policies, and, in particular makes sure they know that employers cannot require transgender employees to use any particular restroom and that they must allow the employee to choose the option s/he feels is safest for him/herself;
- If you operate a place of public accommodation, consider implementing training and policies and procedures as to access to transgender customers’ and visitors; use of restroom facilities..
OK, this is where we leave OSHA — for now at least. Join The EmpLAWyerologist next week as it moves on to a new topic. See you then!
Disclaimer: This post’s contents are for informational purposes only, are not legal advice and do not create an attorney-client relationship. Always consult with competent employment counsel on any issues discussed here.
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