Restroom Access for Transgender Worker

Tuesday May 30, 2017

"OSHA requires all employers under its jurisdiction to provide employees with sanitary and available toilet facilities so that employees will not suffer the adverse health effects that can result if toilets are not available when employees need them. This article provides guidance to employers on best practices regarding restroom access for transgender workers. OSHA’s goal is to assure that employers provide a safe and healthy working environment for all employees."

Jo Schofield | jschofield@peabodyinc.com

Understanding Gender Identity
Many workplaces provide separate facilities and restrooms for men and women. In some cases, questions can arise about which facilities certain employees should use. According to the Williams Institute at UCLA, an estimated 700,000 adults in the United States are transgender—meaning their internal gender identity is different from the sex they were assigned at birth (e.g., the sex listed on their birth certificate). For example, a transgender man may have been assigned as a female at birth and raised as a girl, but may identify as a man. Many transgender people transition to live their everyday life as the gender they identify with. Thus, a transgender person may transition from living as a woman to living as a man or vice versa.

Transitioning is a different process for everyone. It may involve social changes (such as going by a new first name), medical intervention or changing identification documents.

Why Restroom Access is a Health and Safety Matter
Gender is an intrinsic part of each person’s identity and everyday life. Accordingly, authorities on gender issues counsel that it is essential for employees to be able to work in a manner consistent with how they live the rest of their daily lives, based on their gender identity. Restricting employees to using only restrooms that are All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious injuries or illnesses.

OSHA’s Sanitation Standard
Under OSHA’s sanitation standard (1910.141), employers are required to provide their employees with toilet facilities. This standard is intended to protect employees from the health effects created when toilets are not available. Such adverse effects include urinary tract infections as well as bowel and bladder problems. OSHA has consistently interpreted this standard to require employers to allow employees prompt access to sanitary facilities. Furthermore, employers may not impose unreasonable restrictions on employee use of toilet facilities.

Model Practices for Restroom Access for Transgender Employees
Regardless of the physical layout of a worksite, all employers need to find solutions that respect transgender employees and that are safe and convenient. Many companies have implemented written policies to ensure that all employees—including transgender employees—have prompt access to appropriate sanitary facilities.

The core belief underlying the policies is that all employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. The employee should determine the most appropriate and safest option for themselves.

The best policies also provide additional options, which employees may choose, but are not required, to use. Additional options include the following:
  • Single-occupancy gender-neutral (unisex) facilities
  • Use of multiple-occupant, gender-neutral restroom facilities with lockable single-occupant stalls
Under such best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities. In addition, employees should not be required to use a segregated facility apart from other employees because of their gender identity or transgender status. Under OSHA standards, employees should not be limited to using facilities that are an unreasonable distance or travel time from their worksite.

Other Federal, State and Local Laws
Employers should be aware of specific laws, rules or regulations regarding restroom access in their states and municipalities, as well as the potential application of federal antidiscrimination laws.

The Equal Employment Opportunity Commission (EEOC), the Department of Justice (DOJ), the Department of Labor (DOL) and several other federal agencies—following several court rulings—have interpreted prohibitions on sex discrimination, including those contained in Title VII of the Civil Rights Act of 1964, to prohibit employment discrimination based on gender identity or transgender status.

In April 2015, the DOL’s Office of Federal Contract Compliance Programs (OFCCP) announced it would require federal contractors subject to Executive Order 11246—which prohibits discrimination based on both sex and gender identity—to allow transgender employees to use restrooms and other facilities consistent with their gender identity. During the same month, the EEOC ruled that a transgender employee cannot be denied access to common restrooms used by other employees of the same gender identity, regardless of whether that employee has had any medical procedure or whether other employees may have negative reactions to allowing the employee to do so. The EEOC held that such a denial of access constituted direct evidence of sex discrimination under Title VII.

How OSHA Can Help
Workers have a right to a safe workplace. The law requires employers to provide their employees with working conditions that are free of known dangers. An employer’s duty to provide a safe workplace includes the duty to provide employees with toilet facilities that are sanitary and available, so that employees can use them as needed. Employers also have a duty to protect all of their employees, regardless of whether they are transgender, from any act or threat of physical violence, harassment, intimidation or other threatening disruptive behavior that occurs at the worksite.

You can trust your partners at Peabody Insurance Agency to help you implement strategies to provide a safe and healthy working environment for all employees.