Although recent media attention has brought transgender matters to the forefront, one question that employers have been asking for a long time is where transgender employees should use the restroom. The Occupational Safety and Health Administration (OSHA) recently provided best practices for employers from a safety standpoint.
In short, an employee should have access to the restroom that corresponds to his or her gender identity, whether that identity is physically manifested or not.
Example: An employee was born male, but identifies as female. No medical steps have yet been taken to physically transition to female. The employee would have access to utilize the women's restroom since it corresponds with her gender identity, which is female. Ultimately, though, the employee would use the restroom in which she feels the most comfortable. The supervisor takes no part in this decision, other than ensuring that the employee is safe and uninhibited from utilizing the restroom of her choice.
From OSHA's standpoint, employee safety is the dominating concern. Under OSHA's sanitation standard (1910.141), employers must provide unrestricted, sanitary, and promptly accessible restroom facilities to employees. Restricting the use of restrooms or segregating employees to gender-neutral or other employer-dictated facilities may make transgender employees feel singled out, physically unsafe, or can lead to health problems and infections that arise by not having prompt access to a restroom.
Making a gender-neutral restroom available is not unreasonable, but mandating that certain employees only use that designated facility is.
The key difference is that the employee is independently able to use the restroom(s) of his or her choice.
As a reminder, gender-based discrimination includes Title VII protections for transgender people under the Equal Employment Opportunity Commission (EEOC). Denying an employee access to a restroom based on his or her gender is discriminatory therefore violates both Title VII and the employees right to a safe workplace under OSHA.
For human resource guidance on ensuring a safe and discrimination-free environment at your workplace, please contact Nextep's HR team.