How Should You Handle Transgender Restroom Access? OSHA Provides a Clue . . .

A short while ago, civil rights for those who identified as lesbian, gay, bi-sexual, or transgender were  effectively non-existent. However, there has been a recent flurry of activity in this area. The Unites States Supreme Court ruled that a person can legally marry someone of the same sex. The Equal Employment Opportunity Commission determined that discrimination on the basis of sexual orientation violates Title VII of the Civil Rights Act. And former Olympic champion Bruce Jenner has notoriously transformed himself from man to woman right before America’s eyes.

These issues cannot help but find their way into the workplace. After all, places of employment may be biggest incubators of human interaction in our society. And what is more close up and personal for people at work than the sharing of restrooms? The issue of restroom use for transgender employees has been confronted by a limited number of employers so far, but with the rapid changes taking place on the LGBT rights front, it is poised to become a significant issue in the near future.

The Occupational Health and Safety Administration is out in front of this issue. OSHA is the federal agency charged with establishing and enforcing workplace safety issues. Earlier this year, the agency issued guidance for employers to follow in addressing transgender restroom access. OSHA’s recommendation is that transgender employees should be allowed to choose the restroom that is consistent with their identified gender rather than their birth gender.

While OSHA typically issues formal rules that have the force and effect of law, its restroom guidance is just that­-guidance. Employers are under no obligation to follow it and OSHA cannot cite an employer for failing to do so. Critics of the guidance argue that the agency has no authority to address transgender restroom access because it is not a workplace safety issue. Supporters argue that OSHA has long had regulations requiring the provision of separate sex restroom facilities in the workplace.

As with most controversial civil rights issues, expanded rights for LGBT people will be subject to complaints and litigation. The OSHA guidance for restroom use cannot be cited as a legal standard, but in the absence of law on the matter, courts or other tribunals may look to it for assistance in determining how rights should be adjudicated. The safest bet as an employer would be to follow the OSHA guidelines for now and stay tuned for future developments in this area.

Creative Business Lawyers are well-versed in the federal and state laws that apply to businesses, including the most recent happenings in laws relating to transgender employees. Make an appointment today to discuss any questions you have, or schedule a LIFT Start-Up Session, which includes employment structuring, financial, and tax systems you need for your business.