On the same day that Caitlyn Jenner appeared on the cover of Vanity Fair, OSHA released A Guide to Restroom Access for Transgender Workers, guiding employers on best practices regarding restroom access for transgender employees (employees whose internal gender identity is different from the sex they were assigned at birth). The recent media attention on Jenner sparked a national dialogue on transgender issues, and many employers have questions about how they should handle restroom preferences for transgender employees. OSHA views restroom access for transgender workers as a health and safety matter, stating:

[I]t is essential for employees to be able to work in a manner consistent with how they live their daily lives, based on their gender identity. 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.

The OSHA guidelines and recent legal developments make it very clear that employers must treat transgender employees in exactly the same way as they treat other employees of the gender with which the transgender employee identifies. For example, let’s say an employee who was assigned the male sex at birth identifies as being a woman and the employer provides employees with three restroom facilities–one for women, one for men, and one single stall, unisex restroom that all employees may utilize. In that scenario, the employee who identifies as a woman must have equal access to the women’s restroom. It does not matter that the employer has a gender-neutral restroom available. It does not matter whether the employee transitioned before or after becoming an employee of the company. It also does not matter whether the employee had any type of transition surgery. All that matters is that the employee now considers himself or herself as being of a certain gender. Once the employee has made such identification, the employer must treat the employee as a member of the gender to which the employee has transitioned.

According to the guide, the best policies also provide additional options, which employees may choose, but are not required to use, including:

• Single-occupancy gender-neutral (unisex) facilities; and
• Use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

Single-occupancy gender-neutral (unisex) facilities are one-room facilities equipped with a sink, toilet, and optional urinal, and they typically exist in the form of family-access bathrooms and bathrooms accessible to people with disabilities. Single-occupancy restrooms should be designated as “gender neutral,” as gender-restricted restrooms can cause confusion when individuals are perceived to be of a different gender from the restroom’s designation.

Multiple-occupant, gender-neutral restroom facilities with lockable single-occupant stalls are generally modified versions of gender-segregated restroom facilities with enhanced privacy features. Employers can retrofit their current gender-segregated restrooms to enhance privacy by installing flaps on the outer edge of stall doors to cover the gap between the door and the stall wall, extending stall doors and walls from floor to ceiling, and in men’s restrooms, extending privacy dividers between urinals further out from the wall and to a higher level.

“Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees,” OSHA advises. Best practices will not require transgender employees to provide medical or legal documentation of their gender identity, or require transgender employees to use a segregated facility apart from other employees. The guide also points out that under OSHA standards, employees generally may not be restricted to using restrooms that are an unreasonable distance or travel time from the employee’s worksite.

In the wake of this new guidance, the best strategies for employers to guard against harassment and discrimination claims include implementing policies and procedures that clearly state transgender employees will not be required to use any specific restroom. Employers should also train HR personnel and managers on such policies and, in particular, make sure they know that the employee should determine the most appropriate and safest option for him or herself. Additionally, employers can provide all employees with access to single-occupancy, unisex restrooms (where available) to be used at each employee’s discretion, and can also take steps to increase the privacy of any common restrooms, as outlined above.

By Destyn D. Stallings, dstallings@dsda.com