OSHA issues a Guide to Restroom Access for Transgender Workers

The Department of Labor's (DOL) Occupational Safety and Health Administration (OSHA) is influential in creating workplace standards across the nation. They have recently issued a document called "Best Practices: A Guide to Restroom access for Transgender Workers" The full document can be found here. For a list of other documents relating to LGBT Policy check out this link. 

This document focuses on a single simple core principle: "All employees, including transgender employees, should have access to restrooms that correspond to their gender identity."

Why is OSHA involved in a social issue? OSHA recognizes this is a health and safety matter: 

Gender identity 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 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 physical injury or illness.

Now let's get into more specific practices and policies:

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 these 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 him- or herself.

The best policies also provide additional options, which employees may choose, but are not required, to use. These include: • Single-occupancy gender-neutral (unisex) facilities; and • Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls. 

Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.

Under these 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, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status. Under OSHA standards, employees generally may not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite.

The document includes an important disclaimer: 

"This document is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace. The Occupational Safety and Health Act requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm."

While OSHA does not create laws, rules, or regulations it does pay attention to them:

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

The Equal Employment Opportunity Commission (EEOC), the Department of Justice (DOJ), 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, as amended, which prohibits discrimination based on both sex and gender identity, to allow transgender employees to use the restrooms and other facilities consistent with their gender identity. Also in April 2015, the EEOC ruled that a transgender employee cannot be denied access to the 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.

The document goes on to sample laws from Colorado, Delaware, District of Columbia, Iowa, Vermont, and Washington with links to each as well as other resources and references. I'll be going through these and adding them to the resource page as appropriate.