New Interpretations of Old Standards
On June 1, 2015, the Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) issued new employer guidelines for providing restrooms to transgender employees. The guidelines aim to establish best practices for restroom access policies.
Under OSHA’s Sanitation Standard, employers must provide prompt access to clean and safe restrooms that are accessible to all employees. OSHA’s new guidelines instruct employers on how to avoid unlawfully restricting use of restrooms by transgender employees. In general, the best practices favor either allowing transgender employees to use the restroom that corresponds to their chosen gender identity or providing communal gender-neutral restrooms.
OSHA has issued brief descriptions of three model practices for restroom access. These practices include:
- Permitting employees to use existing restrooms that correspond with their gender identity.
- Providing single-occupant, gender-neutral facilities for use by all employees.
- Providing multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls for use by all employees.
OSHA has also outlined policies that DO NOT satisfy new guidelines. Chief among these disfavored policies are:
- Providing a restroom solely for the use of transgender employees.
- Requiring transgender employees to use a gender-neutral restroom when other employees are permitted to use gender-specific restrooms.
- Requiring employees to provide documentation of their gender identity before using gender-appropriate facilities.
Other Laws and Regulations
Though the best practices described in OSHA’s new guidelines are not binding on employers, recent changes in federal and state regulations do require employers to ensure transgender employees have access to appropriate restrooms. Some of these changes are described below.
In April 2015, the Equal Employment Opportunity Commission (EEOC) ruled that denying transgender employees access to common restrooms used by others of the same gender identity constituted sex discrimination under Title VII. In the same ruling, the EEOC held that no transgender employee need show proof of a medical procedure to use a gender-appropriate restroom. The EEOC’s ruling is not binding but reflects how the EEOC will enforce Title VII.
Also in April, the DOL’s Office of Federal Contract Compliance Programs (OFCCP) required any federal contractor subject to Executive Order 11246 to allow transgender employees access to restrooms consistent with their gender identity. Several states—for example, Colorado, Iowa, Vermont, and Washington—similarly require employers to allow restroom use in accordance with one’s chosen gender identity. Others suggest providing gender-neutral restrooms where possible.