On June 1, 2015, the Occupational Safety and Health Administration (OSHA) announced its publication of newguidance on best practices regarding transgender employees’ bathroom access. The announcement comes after the National Center for Transgender Equality formed an alliance with OSHA and requested guidance from the agency. The action by OSHA coincides with National LGBT Pride Month.
For over 40 years, OSHA has required employers to provide separate-sex restrooms for employees. Given this requirement, employers working with transgender employees may be grappling with a number of questions and concerns, including whether to allow transgender employees to use the restroom of their assigned sex at birth or the gender with which the employee currently identifies; whether the employer should require documentation—medical, legal, or otherwise—before allowing such access; and how other employees will react to changes in restroom usage.
A handful of jurisdictions—such as Colorado, Delaware, Iowa, Vermont, Washington, and the District of Columbia—have implemented laws, regulations, and/or guidance requiring employers to allow employees access to restrooms appropriate to their gender identity, rather than their assigned sex at birth, without harassment or questioning. Following the lead of these states and the District of Columbia, 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. They may even be considered ideal in that their use would eliminate many of the competing concerns on the topic of transgender access to restrooms.
Some question exists as to the authority of OSHA to issue this guidance. The agency’s mission is limited to employee safety and health. OSHA’s sanitation regulation, 29 C.F.R. §1910.141, requires toilet facilities for each sex. Virtually every employer in the United States that provides restrooms with an appropriate number of clean, sanitary water closets is in literal compliance with this provision. Requiring that a transgender employee use a bathroom reserved for employees of the sex that he or she was assigned at birth rather than the one with which the employee currently identifies does not readily implicate a health or safety concern and does not violate any express provision of 29 C.F.R. §1910.141.
OSHA’s guidance indicates two potential health or safety concerns. First, the guidance states employers may not place “unreasonable restrictions on employee use of toilet facilities.” But OSHA’s long-standing “unreasonable restriction” interpretation is intended to prohibit company rules limiting restroom breaks to, say, two per shift, or some other unreasonable and arbitrary limitation. As of this writing, no court in the United States has addressed whether asking a transgender employee to use a particular restroom is an “unreasonable restriction.” 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. Despite this statement, a subjective fear of workplace violence is not a violation of the Occupational Safety and Health Act (OSH Act). To establish such a violation (presumably through the OSH Act’s General Duty Clause), OSHA would have to establish the existence of an actual hazard, not merely a subjective fear.
OSHA’s guidance does not have the same force and effect as a regulation promulgated through notice-and-comment rulemaking. Employers, however, should be aware of the guidance and carefully consider its recommendations. With the agency taking the view that transgender identity and bathroom selection is now a health and safety issue, an employer that refuses to allow a transgender employee to use the restroom of his or her chosen gender identity can expect a visit from OSHA and perhaps a citation. Further, employers should be aware that, based on this guidance, a transgender employee may file a complaint with OSHA claiming that he or she was discriminated against over a health and safety issue. Such employers may also find themselves defending a section 11(c) whistleblower claim.