By: Jennifer L. Ward, Esq.
Under the Occupational Safety and Health Administration’s (“OSHA”) standards, employers are required to provide their employees with restroom facilities. Until recently, this requirement left employers wondering whether they could deny a transgender employee the right to use a bathroom that is consistent with their “gender identity.”
Quick answer: No.
On June 1, 2015, OSHA published a “Guide to Restroom Access for Transgender Workers.” The Guide provides that all “employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” If a person identifies himself as a man, he should be allowed to use the men’s restroom. If a person identifies herself as a woman, she should be allowed to use the women’s restroom. In the alternative, an employer, for all of its employees (transgender or not), may provide for 1) single-occupancy gender neutral (unisex) facilities or 2) use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
Employers should be wary of restricting restroom access to a transgender employee. In April 2015, the Equal Employment Opportunity Commission (“EEOC”) ruled that denial of restroom access to a transgender employee constitutes sex discrimination under federal law. 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 the employee had any medical procedure or whether other employees may have a negative reaction to allowing the employees to do so.”
Stall Protocol: Employees, including transgender employees, should have access to restrooms that correspond to their gender identity. Employers should be guided accordingly.