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OSHA Recommended Transgender Employees Use Restrooms Consistent With Gender Identity – Are You, Your Employees, and Your Customers Ready to Accept This?

More and more, the issue of transgender rights is coming into the national spotlight. Employers are being presented with questions about how to lawfully accommodate transgender employees in the workplace.  To date, these questions have not had simple legal answers nor are the answers readily accepted by all.

Even something as fundamental as restroom use poses legal and cultural challenges. Should employers allow transgender employees use of the restroom of the gender with which they identify?  Or should they require such employees to use the restroom of their biological gender or single stall restrooms?  The latter would placate coworkers who may be uncomfortable sharing a restroom with a transgender individual, but would it create legal headaches for the employer?  Courts have differed on this issue.  Federal law lacks clarity as well.  Federal agencies have recently opined on this issue, but their opinions may not make life easier for employers.

OSHA’s “A Guide to Restroom Access for Transgender Workers” pamphlet states as its core principle: “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.” The pamphlet suggests this is a best practice and stresses, “The employee should determine the most appropriate and safest option for him- or herself.”  It also suggests employers provide other options which employees may but would not be required to choose.  Examples suggested by OSHA are single-occupancy gender neutral restrooms and multiple-occupant, gender-neutral restrooms with lockable single occupant stalls.  Some of these options may be impractical or may only serve to fuel employee dissatisfaction.

This publication came on the heels of the Equal Employment Opportunity Commission finding in its Lusardi v. McHugh opinion that restricting a transgender employee to the use of a single-occupancy bathroom was unlawful.  The EEOC took the position that the employer, a government agency, could not prohibit an employee who had not undergone sex reassignment surgery from using the restroom of the gender with which the employee identified until after the employee underwent the surgery.

While federal agencies are taking an aggressive tack, it still remains to be seen whether the courts will agree. Courts that have previously heard cases involving transgender issues have so far reached differing conclusions.  We expect many more will be decided in the coming years, but we don’t expect clarity until the appellate courts have spoken.  We will keep you posted about the latest developments regarding this complicated issue.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.