Monday, June 8, 2015

OSHA Issues Guidance on Restroom Use for Employees Based on Transgender or Gender Identity Status

It seems that social issues sometimes explode in the workplace almost overnight.  Such is the case with employment issues unique to transgender employees. Maybe it’s the attention that Caitlyn Jenner has brought to the issues of transgender people which has made it more of a “hot topic” lately, but employers are well advised to pay attention to the issue in their workplace.

According to the Department of Labor, approximately 700,000 people in the United States are in some phase of transitioning from one gender to another. At some point, many employers will face the needs of a transgender individual in the workplace.

While transgender individuals are not specifically covered  by description in either Title VII or the Illinois Human Rights Act. Nevertheless, the rights of transgender individuals in the workplace are rapidly gaining recognition.

Recently, the EEOC and several federal agencies concluded that transgender discrimination is prohibited as gender discrimination (remember, sexual harassment is also not specifically identified in Title VII but was also found to be prohibited as gender discrimination). Now OSHA, in conjunction with the Department of Labor has issued a guidance on best practices to providing restroom access for transgender workers.  

The guidance is based on the OSHA standard that employers must provide readily accessible restrooms to employees for health reasons.  Based on that standard, the agencies define best practices as follows:

  1. Employers should make readily accessible restrooms to all employees based on the employee’s gender identity;
  2. Employers must not require medical or legal documentation of gender in order for that employee to select the restroom in which they feel most comfortable using;
  3. Employers cannot deny access to a restroom based on the negative reaction of other employees;
  4. Employers must not segregate restroom use based on gender identity or transgender status;
  5. Employers should consider providing gender neutral restrooms;

Employers should take note of the guidance and the need for awareness and respect for gender identity or transgender issues in the workplace, starting with the most basic issue of restroom use. Many employers are developing policies to address these issues and to help raise the awareness of addressing the needs of all employees in the workplace. Consultation with an attorney experienced in labor and employment issues is  helpful to ensure that these types of policies meet the needs of all employees and conforms with the law.