Carmen Carrera is an actress and model. Lynn Conway is a recognized computer scientist. Caroline Cossey was a Bond girl in the movie “For Your Eyes Only.” Amanda Simpson, appointed by President Obama, currently serves as the Executive Director of the U.S. Army Office of Energy Initiatives.
What do these people have in common? They are transgender.
The younger generation may be more familiar with names such as Lana Wachowski (who was the co-director of the Matrix movies), Laverne Cox (star of the popular series, “Orange Is The New Black”), and Caitlyn Jenner (who won the Olympic gold medal). They too are transgender.
As more transgender people become comfortable revealing their true selves, there have been discussions about whether an individual who is born a man but identifies as a woman can use the women’s restroom, and vice versa. This is a sensitive topic that has raised safety concerns for some people. In fact, several schools from elementary school to the college level have installed gender-neutral bathrooms (or “unisex bathrooms”) to address any safety issues that may arise.
The installation of gender-neutral bathrooms is also a growing trend in the workforce. Recently, OSHA published “A Guide to Restroom Access for Transgender Workers.” This is an important guide that reminds employers that they have an obligation to provide employees toilet access. In addition, the guide reminds employers that they may not impose unreasonable restrictions on employee use of toilet facilities. The Guide contains “best practices” and makes it clear that
Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities. In addition, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status.
It should be stressed that this is not law, but rather OSHA guidelines. But undoubtedly, the issue presents employers with a liability pitfall. For example, in April 2015, the Equal Employment Opportunity Commission (“EEOC”) determined that denying transgender employees access to restrooms used by other employees of the same gender identity constitutes direct evidence of sex discrimination under Title VII. This case involved a male-to-female transgender woman who was told that her use of a common women’s restroom was making co-workers “uncomfortable,” and she was directed to use a unisex bathroom instead.
At a minimum, employers should take the time to review the OSHA Guide as well as their company’s internal policies regarding access to bathroom facilities. If you have any questions about discrimination on the basis of sex or sexual orientation, please contact us.