Earlier this year, EmployNews reported on an EEOC decision indicating that employers must allow transgendered employees to use restrooms based on their gender identity regardless of co-worker complaints. In April, OFCCP announced similar rules that apply to federal contractors. Last week, the Occupational Safety and Health Administration jumped into this fray, issuing a Best Practices Guidance echoing the EEOC’s and OFCCP’s positions.
OSHA regulations (29 C.F.R. §1910.141) require employers to provide employees with toilet facilities. OSHA stated that requiring employees to use a restroom that differs from their gender identity can result in employees refusing to use the facilities at all during working hours, thus creating health and safety concerns. The agency noted the same concerns exist when employees undergoing gender identity transition are required to use alternative or gender-neutral restrooms. While employers may offer such alternative restroom arrangements, they cannot mandate that transgendered employees use these options instead of the gender-specific restroom matching their gender identity.
The Guidance also states that employers should not ask employees for medical certification or other documentation of their gender identity as a condition of allowing access to gender-appropriate restroom facilities. As with the EEOC’s position, OSHA makes no mention of co-worker concerns or complaints as grounds for denying such access. Presumably, employers that fail to provide such restroom access could face OSHA safety inspections and citations of up to $7000 for an initial violation, and $70,000 for a repeat violation. The full OSHA guidance can be found here