The Occupational Safety and Health Administration (OSHA) has released a guide for employers on best practices regarding restroom access for transgender workers. This release coincides with National LGBT Pride Month as well as Caitlyn Jenner’s appearance on the June cover of Vanity Fair.
OSHA’s Sanitation Standard requires employers to provide their employees with toilet facilities. OSHA also requires employers to allow employees prompt access to toilet facilities and prohibits employers from imposing unreasonable restrictions on employee use of toilet facilities. Consequently, the OSHA guide advances the principle that all employees—including transgender employees—should have access to restrooms that correspond to their gender identity. The guide further explains that 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.
OSHA also discourages employers from asking employees to provide medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities. OSHA has taken the position that the employee should determine the most appropriate restroom option for himself or herself. Accordingly, OSHA suggests that employers may want to consider whether they should provide employees with single-occupancy gender-neutral (unisex) facilities or multi-occupancy, gender-neutral restroom facilities with lockable single occupant stalls.
Employers should keep in mind that they may be subject to other applicable federal, state, or local laws protecting transgender individuals in the workplace. For example, the Illinois Human Rights Act prohibits unlawful discrimination in employment because of an individual’s sexual orientation, which includes “gender-related identity, whether or not traditionally associated with the person’s designated sex at birth.” In addition, the U.S. Equal Employment Opportunity Commission, as well as other federal agencies and courts, have interpreted the federal prohibition on sex discrimination to prohibit employment discrimination based on gender identity or transgender status.