OSHA Issues Guide To Restroom Access For Transgender Workers

Volume 14, Issue 22
October 5, 2015

The Occupational Safety and Health Administration (OSHA) recently published a Guide to Restroom Access for Transgender Workers (Guide), which was developed at the request of the National Center for Transgender Equality.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's sanitation standard for general industry, 29 CFR 1910.141(c)(1)(i), requires all employers under its jurisdiction to provide their employees with toilet facilities. This standard is intended to protect employees from the health effects created when toilets are not available, such as urinary tract infections and bowel and bladder problems. OSHA has consistently interpreted its sanitation standard to require employers to allow employees prompt access to sanitary facilities. Further, employers may not impose unreasonable restrictions on employee use of toilet facilities.

The new Guide provides employers with best practices regarding restroom access for transgender workers. According to Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels, "[t]he core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity." 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.

In the Guide, OSHA estimates that 700,000 adults in the United States are transgender. In addressing why restroom access is a health and safety matter, OSHA explains that when employers require employees to use only restrooms that are consistent with their actual gender or gender-neutral restrooms, employees may feel singled out or fear for their physical safety. Such restrictions may result in employees avoiding the use of restrooms while at work, which according to the Guide, "can lead to potentially serious physical injury or illness."

OSHA makes clear by way of a disclaimer that its Guide is not a standard or a regulation and that it creates no new legal obligations on employers. Notwithstanding this disclaimer, the Equal Employment Opportunity Commission has taken the position that discrimination against an individual because that person is transgender is a violation of Title VII's prohibition of sex discrimination in employment (see below). And in Nevada, gender identity is a protected class under the state's anti-discrimination in employment law, NRS 613.330. Accordingly, a careful review of the Guide is prudent.

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