By Ilana Morady

On June 1, 2015, OSHA published a Guide to Restroom Access for Transgender Workers. The publication provides guidance to employers on best practices for restroom access for transgender workers. The agency has estimated that over 700,000 adults in the US are transgender, meaning that their gender identity is different than their sex assigned at birth (e.g., the sex often listed on a birth certificate).

The regulatory basis for OSHA’s Guide is the general industry Sanitation Standard, 29 CFR 1910.141, which requires employers to provide sanitary and available toilet facilities so that employees will not suffer adverse health effects that can result if toilets are not available when employees need them.  The core principle of the Guidance is to ensure that transgender employees are able to work in a manner consistent with their gender identity, and how they live their lives outside of the workplace.  OSHA believes that unsafe conditions can arise if transgender employees are restricted to certain facilities.  The guidance explains that 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.  If further warns that bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.

Accordingly, as a best practice, OSHA recommends that employers allow transgender employees to use the restroom consistent with their gender identity.  The OSHA guidance further suggests that employers provide restroom options that employees can choose but are not required to use, such as single-occupancy gender-neutral facilities (unisex) and multiple-occupant, gender-neutral restrooms with lockable single-occupant stalls.

The Guidance notes that employees should not be asked to provide medical documentation of their gender identity in order to have access to gender-appropriate facilities. Additionally, OSHA’s Guidance states that no employees should be required to use a segregated facility apart from other employees because of their gender identity.

In light of this Guidance, employers should evaluate their policies to ensure that they are in conformance with OSHA’s interpretation of the Sanitation Standard or face potential enforcement action.  In addition, employers should be aware of any state-specific rules and regulations on this issue, including state non-discrimination laws.   Employers should also remember that the Equal Employment Opportunity Commission interprets the sex discrimination provisions of Title VII to forbid discrimination against transgender individuals in employment, which could be applied to use of employer facilities among other employer policies and practices.  Employers should consult with counsel if they have questions.