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A Guide to Restroom Access for Transgender Workers

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A Guide to Restroom Access for Transgender Workers BestPractices A Guide to Restroom Access for Transgender Workers Core principle: All employees, including transgender employees, should have access to restrooms that correspond to their gender identity. Introduction everyone—it may involve social changes (such as going by a new first name), medical steps, and The Department of Labor’s (DOL) Occupational changing identification documents. Safety and Health Administration (OSHA) requires that all employers under its jurisdiction provide employees with sanitary and available Why Restroom Access Is a Health toilet facilities, so that employees will not suffer and Safety Matter the adverse health effects that can result if Gender identity is an intrinsic part of each toilets are not available when employees need person’s identity and everyday life. Accordingly, them. This publication provides guidance to authorities on gender issues counsel that it is employers on best practices regarding restroom essential for employees to be able to work in a access for transgender workers. OSHA’s goal manner consistent with how they live the rest of is to assure that employers provide a safe and their daily lives, based on their gender identity. healthy working environment for all employees. Restricting employees to using only restrooms that are not consistent with their gender identity, or Understanding Gender Identity segregating them from other workers by requiring them to use gender-neutral or other specific In many workplaces, separate restroom and other restrooms, singles those employees out and may facilities are provided for men and women. In make them fear for their physical safety. Bathroom some cases, questions can arise in the workplace restrictions can result in employees avoiding using about which facilities certain employees should restrooms entirely while at work, which can lead to use. According to the Williams Institute at potentially serious physical injury or illness. the University of California-Los Angeles, an estimated 700,000 adults in the United States are transgender—meaning their internal gender OSHA’s Sanitation Standard identity is different from the sex they were Under OSHA’s Sanitation standard (1910.141), assigned at birth (e.g., the sex listed on their birth employers are required to provide their certificate). For example, a transgender man may employees with toilet facilities. This standard is have been assigned female at birth and raised as intended to protect employees from the health a girl, but identify as a man. Many transgender effects created when toilets are not available. people transition to live their everyday life as the Such adverse effects include urinary tract gender they identify with. Thus, a transgender infections and bowel and bladder problems. man may transition from living as a woman to OSHA has consistently interpreted this standard living as a man. Similarly, a transgender woman to require employers to allow employees prompt may be assigned male at birth, but transition to access to sanitary facilities. Further, employers living as a woman consistent with her gender may not impose unreasonable restrictions on identity. Transitioning is a different process for employee use of toilet facilities. 1-800-321-OSHA (6742) 1 www.osha.gov Model Practices for Restroom Access several court rulings, have interpreted prohibitions for Transgender Employees on sex discrimination, including those contained in Title VII of the Civil Rights Act of 1964, to prohibit Many companies have implemented written employment discrimination based on gender policies to ensure that all employees—including identity or transgender status. In April 2015, the transgender employees—have prompt access DOL’s Office of Federal Contract Compliance to appropriate sanitary facilities. The core belief Programs (OFCCP) announced it would require underlying these policies is that all employees federal contractors subject to Executive Order should be permitted to use the facilities that 11246, as amended, which prohibits discrimination correspond with their gender identity. For based on both sex and gender identity, to allow example, a person who identifies as a man transgender employees to use the restrooms should be permitted to use men’s restrooms, and other facilities consistent with their gender and a person who identifies as a woman should identity. Also in April 2015, the EEOC ruled that a be permitted to use women’s restrooms. transgender employee cannot be denied access to The employee should determine the most the common restrooms used by other employees appropriate and safest option for him- or herself. of the same gender identity, regardless of whether The best policies also provide additional options, that employee has had any medical procedure which employees may choose, but are not or whether other employees’ may have negative required, to use. These include: reactions to allowing the employee to do so. The EEOC held that such a denial of access constituted • Single-occupancy gender-neutral (unisex) direct evidence of sex discrimination under Title VII. facilities; and • Use of multiple-occupant, gender-neutral The following is a sample of state and local legal restroom facilities with lockable single provisions, all reaffirming the core principle that occupant stalls. employees should be allowed to use the restrooms that correspond to their gender identity. Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and Colorado: Rule 81.9 of the Colorado regulations convenient and respect transgender employees. requires that employers permit their employees to use restrooms appropriate to their gender Under these best practices, employees are identity rather than their assigned gender at not asked to provide any medical or legal birth without being harassed or questioned. documentation of their gender identity in order 3 CCR 708-1-81.9 (revised December 15, 2014), to have access to gender-appropriate facilities. In available at http://cdn.colorado.gov/cs/Satellite/ addition, no employee should be required to use DORA-DCR/CBON/DORA/1251629367483. a segregated facility apart from other employees because of their gender identity or transgender For more information refer to: “Sexual status. Under OSHA standards, employees Orientation & Transgender Status generally may not be limited to using facilities Discrimination—Employment, Housing & that are an unreasonable distance or travel time Public Accommodations,” Colorado Civil Rights from the employee’s worksite. Division, available at: http://cdn.colorado.gov/cs/ Satellite/DORA-DCR/CBON/DORA/1251631542607. Other Federal, State and Local Laws Delaware: Guidance from the Delaware Employers should be aware of specific laws, Department of Human Resource Management rules, or regulations regarding restroom access provides Delaware state employees with access in their states and/or municipalities, as well to restrooms that correspond to their gender as the potential application of federal anti- identity. The guidance was issued pursuant to the discrimination laws. state’s gender identity nondiscrimination law. The Equal Employment Opportunity Commission Delaware’s policy also suggests: Whenever (EEOC), the Department of Justice (DOJ), DOL, practical, a single stall or gender-neutral restroom and several other federal agencies, following may be provided, which all employees may utilize. 1-800-321-OSHA (6742) 2 www.osha.gov However, a transgender employee will not be is consistent with their gender identity. Where compelled to use only a specific restroom unless single occupancy restrooms are available, all other co-workers of the same gender identity the Commission recommends that they be are compelled to use only that same restroom. designated as “gender neutral.” For more information refer to: State of Delaware For more information refer to: “Guide to Guidelines on Equal Employment Opportunity Sexual Orientation and Gender Identity and the and Affirmative Action Gender Identity, available Washington State Law Against Discrimination,” at: http://www.delawarepersonnel.com/policies/ available at: http://www.hum.wa.gov/ documents/sod-eeoc-guide.pdf. Documents/Guidance/GuideSO20140703.pdf. District of Columbia: Rule 4-802 of the D.C. Municipal Regulations prohibits discriminatory Additional Information practices in regard to restroom access. • American Psychological Association. Individuals have the right to use facilities Answers to your questions about transgender consistent with their gender identity. In people, gender identity and gender expression, addition, single-stall restrooms must have 2011: http://www.apa.org/topics/lgbt/ gender-neutral signage. D.C. Municipal transgender.aspx. Regulations 4-802, “Restrooms and Other • Transgender Law Center’s model employer Gender Specific Facilities,” available at: http:// policy, with an extensive section on restrooms, www.dcregs.dc.gov/Gateway/RuleHome. can be found at: http://transgenderlawcenter. aspx?RuleNumber=4-802. org/wp-content/uploads/2013/12/model- workplace-employment-policy-Updated.pdf. Iowa: The Iowa Civil Rights Commission requires • “Restroom Access for Transgender that employers allow employees access to Employees” on Human Rights Campaign restrooms in accordance with their gender website: http://www.hrc.org/resources/entry/ identity, rather than their assigned sex at birth. restroom-access-for-transgender-employees. For more information refer to: “Sexual • National Gay and Lesbian Task Force Orientation & Gender Identity
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