A federal agency recently issued important guidance on a question some retail store executives may never have considered — how to handle restroom access for transgender employees.
In its Guide to Restroom Access for Transgender Workers, published June 1, OSHA staked out a clear position: Employees should have access to restrooms based on their inward gender identity, not on the employer’s opinion as to which restroom they should use. Earlier this year, EEOC issued similar language.
All of this makes compliance for your stores and corporate offices a simple affair, right? Well, yes and no.
Not everyone is in step with the federal government’s progressive views. Take the transition of former Olympic athlete Bruce Jenner into Caitlyn Jenner. The mostly broad-minded media coverage of Jenner’s transformation shows how far American society has come on this issue. And yet Jenner’s story still sparked a backlash in some quarters — expressions of mean-spirited mockery, moral indignation and everything in between. It all reminds me of the early part of my legal career in the 1980s, an era when Americans were awakening to the realities of sexual harassment. Back in those days, c-suite executives would often make obviously sexist comments during sensitivity training exercises. After being chided by the legal team, they would blurt out incredulously, “Why can’t I say that?”
Thus, it is quite possible a store manager grappling with the restroom-access issue could make big blunders.
Here are some direct quotes from OSHA and EEOC:
- “… 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.”
- Transgender employees “cannot be denied access to the common restrooms used by other employees of the same gender identity, regardless of whether that employee has had any medical procedure or whether other employees’ may have negative reactions to allowing the employee to do so [emphasis added].”
- “…no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status.”
- “…employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.”
Even an open-minded manager with good intentions could easily violate one or more of the above guidelines if allowed to “wing it.” For example, several court cases have hinged on situations in which women employees complained to their managers about the presence of transgender employees in the women’s room. You can see how a manager might try to improvise: “Of course it’s OK for you to use the female-only restroom,” the manager says, “but you’ll first have to bring in a doctor’s note proving you have had surgery.” As the feds see it, that’s a big no-no.
Another seemingly “middle ground” solution would be for a manager to say to a transgender employee “Well, you can use the single-occupancy restroom in my office. How about that?” According to OSHA, singling out transgender employees in this way poses a health and safety risk.
If transgender employees are asked to use different restrooms than everybody else, the agency reasons, this could embarrass them and prompt them to avoid using restrooms altogether at work — a situation that could eventually cause the transgender employee to develop urinary tract infections or bowel and bladder problems. (If your company is small enough to simply have one or two single-occupancy, gender-neutral restrooms, OSHA actually likes that solution. The agency also lauds the use of “multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.”)
Of course, the worst scenario would be one in which your employees were hostile to their transgender colleagues. This could be relatively subtle: After someone begins presenting as transgender, a manager might insist on continuing to say “John” rather than “Jane” or “he” rather than “she.”
Or it could be overt, as in the case of insults, jeers or mockery. While the courts are all over the map with respect to transgender rights, the momentum is clearly toward their eventual recognition. A hostile work environment has long been understood as legitimate grounds for harassment and discrimination claims; make sure your stores and corporate offices are open and accommodating toward transgender people.
The bottom line? If you already have a restroom-access policy for transgender employees, work with counsel to make sure it is in line with the newly published OSHA guidance. If your chain lacks such a policy, have your legal team use those guidelines to draft one. You should also make sure your employees are well educated on these issues. Sensitivity training is in order: Employees must understand the importance, not only of complying with the letter of your policy, but also with adhering to its spirit of fairness.