On June 2, 2015, the Occupational Safety and Health Administration ("OSHA") issued a best practices memorandum titled “A Guide to Restroom Access for Transgender Workers” in which it recommended that employers permit workers to use restrooms based on their gender identity, not necessarily the gender stated on their birth certificates. OSHA’s recommendations are consistent with those issued by the Equal Employment Opportunity Commission ("EEOC") and the Office of Federal Contract Compliance Programs ("OFCCP") earlier in 2015. The EEOC determined that failing to allow transgender workers to use bathrooms of the gender with which they identify violates the sex discrimination prohibitions under Title VII. Similarly, the OFCCP based its new guidance on Executive Order 13672, which prohibited federal contractors from discriminating against employees on the basis of sexual orientation or gender identity.
Unlike the directives from the EEOC and OFCCP, OSHA’s recommendation is not a mechanism to enforce federal anti-discrimination laws. Instead, OSHA couches restroom access as a safety issue. OSHA’s Sanitation standard (29 CFR § 1910.141) requires employers to provide safe and sanitary toilets for all workers. A transgender worker forced to use a restroom assigned to a gender with which he or she does not identify might refuse to use the restroom altogether, potentially resulting in health issues such as urinary tract infections and bladder or bowel problems. Thus, OSHA recommends that employers allow all employees to use the bathrooms assigned to the gender with which they associate to avoid such potential health concerns.
OSHA’s new guidelines further clarified that employers cannot simply create a separate unisex restroom and force transgender employees to use that restroom as it might stigmatize such employees. Employers can create separate unisex facilities, but transgender employees must still be allowed to use the restroom consistent with their gender identity. Moreover, employers cannot require employees to present medical records or legal documents establishing gender identity
The disclaimer at the end of OSHA’s new guidance makes clear that “[t]his document is not a standard or regulation, and it creates no legal obligations.” Moreover, an employer’s practice inconsistent with OSHA’s guidance is unlikely to be discovered in a routine inspection. However, this certainly does not mean that employers are free to disregard OSHA’s best practice recommendations. If a transgender employee complains to OSHA that he or she has been prohibited from using the restroom consistent with his/her gender identity, OSHA can cite the employer for failing to make sanitary restrooms available for that employee. Similarly, employees who face reprisals after complaining about being forced to use a bathroom designated for their birth gender can assert retaliation claims under the OSH Act. Accordingly, employers cannot ignore this new guidance from OSHA and should modify their practices as necessary to comply.
We will continue to follow the latest developments in this area as changes are occurring at a breathtaking pace.