OSHA Issues Guidance on Restroom Access for Transgender Workers

Author: Marta Moakley, XpertHR Legal Editor
June 5, 2015

The Occupational Safety and Health Administration (OSHA) has published guidance for employers on best practices regarding restroom access for transgender workers. Employers must abide by OSHA's sanitation standard, which requires that all covered employers provide employees with sanitary and available toilet facilities. The guidance clarifies that imposing unreasonable restrictions on a transgender employee's use of toilet facilities violates the sanitation standard.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, stated in a press release that the "core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity." For example, an employee who identifies as a man should be permitted to use men's restrooms.

The guidance was prepared at the request of the National Center for Transgender Equality (NCTE), an OSHA Alliance partner that will educate workers and employers about restroom access rights and responsibilities over the next two years. NCTE policy director Harper Jean Tobin warned in the organization's blog that "employers should take note [of the guidance], and workers should use this document as another tool to assert their rights."

Although not all employers are covered by the OSHA standards, there are a variety of federal, state and local laws that protect against workplace discrimination based on gender identity that may be applicable to a particular employer.

In April, the EEOC ruled in Lusardi v. McHugh, a case involving a transgender female worker, that employees have a right to equal access to workplace facilities such as bathrooms based on Title VII's prohibition against discrimination based on sex. This week four federal agencies, including the Equal Employment Opportunity Commission (EEOC), released a guide on the rights and processes available to federal applicants and civilian employees who allege sexual orientation or gender identity discrimination under Title VII of the Civil Rights Act of 1964 and the Civil Service Reform Act of 1978.

Finally, a number of states and municipalities, including Colorado, the District of Columbia and Vermont, have also passed laws that extend protections from discrimination on the basis of gender expression or gender identity. Houston passed an ordinance in 2014 protecting transgender employees from discrimination that is currently in force, but the law has been the subject of an array of continuing legal challenges.