OSHA Issues New Guide To Restroom Access For Transgender Workers

By: Washington State Employment Law Lawyer Elizabeth L. Van Moppes

One of the more challenging laws against discrimination involves workplace accommodations for transgender employees. This particular protected class has been the law in Washington State since 2006 but only recently been spotlighted with some help from Caitlyn Jenner. It is estimated that more than 700,000 adults in the U.S. are transgender.

Under Washington law, “gender expression or identity” means having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.

The more common term is “transgender.” This term covers a broad range of people who experience and/or express their gender differently from what most people expect. They may express themselves as the gender that does not match the sex listed on their original birth certificate, or they may physically change their sex through medical treatment. This is sometimes called transsexual. The term “transgender” also includes people who are cross-dressers or otherwise gender non-conforming. Gender identity and expression also includes males and females who do not express their gender in stereotypically masculine or feminine ways, such as through their appearance or mannerisms.

It is important to note that a person does not need to have had surgery or otherwise have undergone medical treatment in order to be considered transgendered, or to be protected under the Law Against Discrimination.

On June 1, 2015, OSHA published a timely Guide to Restroom Access for Transgender Workers. The publication provides guidance to employers on best practices for restroom access for transgender workers.

The regulatory basis for OSHA’s Guide is the general industry Sanitation Standard, 29 CFR 1910.141, which requires employers to provide sanitary and available toilet facilities so that employees will not suffer adverse health effects that can result if toilets are not available when employees need them. The core principle of the Guidance is to ensure that transgender employees are able to work in a manner consistent with their gender identity, and how they live their lives outside of the workplace.

OSHA believes that unsafe conditions can arise if transgender employees are restricted to certain facilities. The guidance explains that 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. It further warns that bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.

Accordingly, as a best practice, OSHA recommends that employers allow transgender employees to use the restroom consistent with their gender identity. The OSHA guidance further suggests that employers provide restroom options that employees can choose but are not required to use, such as single-occupancy gender-neutral facilities (unisex) and multiple-occupant, gender-neutral restrooms with lockable single-occupant stalls.

The Guidance notes that employees should not be asked to provide medical documentation of their gender identity in order to have access to gender-appropriate facilities. Additionally, OSHA’s Guidance states that no employees should be required to use a segregated facility apart from other employees because of their gender identity.

In light of this Guidance and the law, as well as the recent attention to the status and struggles of transgender individuals, employers should evaluate their policies to ensure that they are in conformance with OSHA’s interpretation of the Sanitation Standard.

If you would like additional information about accommodating transgender employees, please contact the Beresford Booth attorney with whom you work or Elizabeth Van Moppes directly.

Elizabeth Van Moppes, Beresford Booth PLLC (425.776.4100), www.beresfordlaw.com

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