Citing an estimate of 700,000 adults in the United States who are transgender. the Occupational Safety and Health Administration (OSHA) issued guidance on restroom access for transgender workers (PDF). The document includes a sampling of related state and local provisions.
OSHA’s guidance was issued on the same day that Caitlyn Jenner’s transition photos dominated public media, timing which was coincidental. It’s likely that OSHA updated its guidance in light of a 2014 report which found that the Army discriminated against transgender civilian employee Tamara Lusardi, who was not allowed to use the women’s bathroom. In addition, in April, Lusardi’s complaint to the EEOC was upheld. The EEOC’s ruling found that “Lusardi encountered harassment that violated gender protections outlined in Title VII of the Civil Rights Act of 1964.”
OSHA’s restroom guidance
As a fundamental issue of health and safety, OSHA requires all employers within its jurisdiction to provide employees with sanitary and available toilet facilities. The core principle of the new guidance is identified as: “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” Furthermore, OSHA states that employees should not be required to provide any medical or legal documentation of their gender identity in order have the access to gender-appropriate facilities.
Under best practices, a transgender person should not be required to use segregated facilities nor should they be required to use facilities at an unreasonable distance or travel time from the employee’s worksite. Rather, they should be allowed access to facilities of their gender identity.
OSHA explains why restroom access 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.”
In light of the guidance, employment law attorneys suggest that employers should update policies to be in accordance with this guidance and should also check with any related state and local standards.