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EEOC and OSHA Ask: Is Your Workplace Transgender Neutral? UPDATE

I recently wrote about OSHA’s plan to develop and distribute information to ensure transgender employees have safe and adequate access to workplace restrooms.  This week, OSHA issued “Best Practices - A Guide to Restroom Access for Transgender Workers,” with the stated Core Principle that “[a]ll employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”  The OSHA Guide notes the following: 

  • An estimated 700,000 adults in the United States are transgender - meaning their internal gender
  • Identity is different from the sex they were assigned at birth (e.g., the sex listed on their birth certificate)
  • 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.
  • Under OSHA’s Sanitation standard (1910.141), employers are required to provide their employees with toilet facilities.

As for Best Practices, they include:

  • [A]ll employees should be permitted to use the facilities that correspond with their gender identity.
  • The employee should determine the most appropriate and safest option for him- or herself.
  • The best policies also provide additional options, which employees may choose, but are not required, to use such as single -occupancy gender-neutral (unisex) facilities and multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
  • Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.

The OSHA guidance goes on to note that employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.  Also, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status.  Finally, employees generally may not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite.

While these are being presented as “Best Practices,” the reference to the Sanitation standard as well as the listing of federal, state and local laws that reaffirm the principle of providing employees with access to restroom facilities based on gender identification make clear the direction OSHA is heading.  Employers would be wise to plan ahead to address these issues proactively.

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