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EEOC and OSHA Ask: Is Your Workplace Transgender Neutral?

The widely discussed Bruce Jenner interview has been a media sensation but for employers there are more important recent stories on transgender issues in the workplace. Last month, the EEOC issued a ruling that Title VII was violated by the Army when it refused to allow a transgender, male-to-female, civilian employee to use the women’s common restroom. The employee had met with Army supervisors and discussed her transition from male-to-female, agreeing to a written plan that would allow use of a single-user restroom rather than the women’s’ common restroom, at least until the employee had completed the surgical transition process. On a few occasions when the single-user restroom was unavailable, the employee elected to use the women’s common restroom and was confronted by supervisors for making other employees uncomfortable. There were also allegations of the employee being referred to by “sir” or a male name.

The EEOC concluded:

In summary, we find that Complainant proved that she was subjected to disparate treatment on the basis of sex when she was denied equal access to the common female restroom facilities. We further find that the Agency is liable for subjecting Complainant to a hostile work environment based on sex by preventing her from using the common female restroom facilities and allowing a team leader intentionally and repeatedly to refer to her by male names and pronouns and make hostile remarks well after he was aware that Complainant's gender identity was female.

One news outlet critical of the EEOC’s decision has reported:

According to someone who is very well informed about the EEOC, the EEOC issued the decision because it has filed suits against employers about transgender employees and plans to file more very soon, and it wants its litigators to be able to cite something as legal support for its adventuresome claims.

It is certainly accurate that claims by transgender employees are becoming more common. Links to examples are here and here

This week, OSHA and the National Center for Transgender Equality announced that they have entered into a partnership to develop and distribute information to ensure transgender employees have safe and adequate access to workplace restrooms. The stated purpose of the alliance is to provide “information, guidance, and access to OSHA resources that will help . . . protect the health and safety of workers, particularly by: (1) helping to ensure adequate access to workplace restrooms, and (2) understanding the rights of workers and the responsibilities of employers under the Occupational Safety and Health Act (OSH Act).” Some state legislatures have weighed in as well, most recently Utah, which passed a law requiring restroom accommodation for transgender employees.

Employers would be well advised to prepare themselves to deal with transgender employees’ issues if they have not already done so. In light of the EEOC’s recent decision, the go to solution of providing a separate restroom may not be adequate.  Employers should consult with experienced counsel who can assist with crafting a plan that takes into account employee needs, corporate culture, available facilities and other relevant factors. 

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