One of your most valued employees walks in the door of your office and announces that she is transgender, and is starting the process of transitioning from a male to a female. Of course, you want to support your employee. You don’t have any intention to treat your employee any different as she goes through the transition process. You already know from reading recent blog posts by Mary Kathryn Curry and Chris Johnson that the Equal Employment Opportunity Commission is expanding its definition of what constitutes illegal sex discrimination under Title VII, and that momentum is gathering behind the EEOC’s view, underscored by the Supreme Court’s ruling in Obergefell v. Hodges that legalized same sex marriage nationwide. Plus, you know that there are numerous states and local jurisdictions that prohibit discrimination on the basis of gender identity.
But how do you address the questions that may be raised by other employees? More importantly, how do you handle the basic question of which restroom your employee is supposed to use – the men’s or ladies’ restroom?
The Occupational Safety and Health Commission attempted to answer this question recently when it issued “A Guide to Restroom Access for Transgender Workers.” OSHA announced the core principle that “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” According to OSHA, a biological male who identifies as a female should be allowed to use the ladies’ restroom and a biological female who identifies as a male should be allowed to use the men’s room. OSHA makes clear, however, that restroom selection should not be viewed as a requirement but, instead, should be the employee’s choice.
OSHA offers additional options for employers. One option is to provide single-occupancy, gender-neutral (unisex) restroom facilities. Another option is multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls. However, OSHA warned that the transgender employee must not be forced to use any one particular restroom. In fact, OSHA noted that forcing employees to use a gender-neutral or other specific restroom “singles those employees out and may make them fear for their own physical safety.” According to OSHA, if an employee is not comfortable using the restroom of his/her choice, he/she may refrain from using any restroom at work which could result in health problems for that employee.
The Guide notes that OSHA’s Sanitation Standard, 29 C.F.R. 1910.141, requires employers to provide their employees with restroom facilities and protects employees from health effects created when none are available. Simply telling your employee to use a specific restroom or forcing the employee to use a segregated restroom is not sufficient and would violate the standard.
OSHA’s guide is also helpful as it describes other federal, state and local laws that address transgender equality. You can access OSHA’s guide at https://www.osha.gov/Publications/OSHA3795.pdf.