22 Jun Transgender Employee Bathroom Access
On June 1, 2015, the Occupational Safety and Health Administration (OSHA) announced its publication of new guidance on best practices regarding transgender employees’ bathroom access. In the past, OSHA has required employers to provide separate-sex restrooms for employees. As a result, employers with transgender employees need guidance regarding best restroom practices for transgender employees.
OSHA’s new guidance, “Best Practices: A Guide to Restroom Access for Transgender Workers,” recommends that employers allow transgender employees to select the restroom of their choice, including the restroom of their identified gender. “The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. The guidance further explains:
For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. The employee should determine the most appropriate and safest option for him- or herself.
The agency acknowledges that single-occupant unisex restrooms are permissible. OSHA’s guidance indicates two potential concerns. First, the guidance states employers may not place “unreasonable restrictions on employee use of toilet facilities.” OSHA’s long-standing “unreasonable restriction” interpretation is intended to prohibit company rules limiting restroom breaks or another unreasonable and arbitrary limitation. Second, OSHA states that restricting access “singles those [transgender] employees out and may make them fear for their physical safety,” implicating a workplace violence issue. To establish such a violation, OSHA would have to establish the existence of an actual hazard, not a subjective fear.