This post was contributed by Ambria Armstrong, a Summer Associate with McNees Wallace & Nurick LLC. Ms. Armstrong is a law student at William & Mary Law School and is expected to earn her J.D. in May 2016.
The Occupational Safety and Health Administration (OSHA) requires that all employers covered by the OSH Act provide employees with sanitary toilet facilities so that employees will not suffer adverse health effects if toilets are not available when employees need them. According to the Williams Institute at UCLA, an estimated 700,000 adults in the United States are transgender. In some workplaces, transgender employees have been unable to utilize the restroom that corresponds with their gender identity.
On the same day that Olympic Athlete Caitlyn Jenner (formerly known as Bruce Jenner) appeared on the cover of Vanity Fair Magazine to announce to the world that she had transitioned from male to female and just a few days before the Pennsylvania Senate voted 49-0 to confirm Dr. Rachel Levine, a transgender woman, as the Commonwealth’s new Physician General, OSHA issued guidance titled “A Guide to Restroom Access for Transgender Workers.”
What does it mean to be transgender? According to the Human Rights Campaign, transgender people are individuals whose gender identity is different from the sex assigned to them at birth. Gender identity is a person’s innate, deeply-felt psychological identification as a man, woman, or some other gender. Per the OSHA guidance, “a transgender man may have been assigned female at birth and raised as a girl, but identify as a man. Many transgender people transition to live their everyday life as the gender they identify with. Thus, a transgender man may transition from living as a woman to living as a man” and vice versa. Transition might include social changes (including names and clothing), medical steps, or changes to identification documents. “Sex” and “Gender” also have different meanings. Sex refers to the designation of a person at birth as male or female based on their anatomy and hormones, whereas gender refers to the cultural roles, behaviors, and attributes expected for men and women.
OSHA makes a number of recommendations for companies to take to ensure that all employees are permitted to use the facilities that correspond with their gender identity—meaning that a person who identifies as a man should be permitted to use the men’s restroom and a person who identifies as a woman should be permitted to use the women’s restroom. In addition to this overarching principle, OSHA recommends that employers:
- Consider providing optional alternative bathroom facilities such as single-occupancy gender-neutral facilities or the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
- Do not ask transgender or transitioning employees for any medical or legal documentation of their gender identity in order for them to have access to gender-appropriate facilities.
- Do not limit transgender employees to facilities that are an unreasonable distance or travel time from the employee’s worksite.
- Above all, be respectful and ensure all employees are treated with dignity and are free from harassment. Do not make assumptions, and if in doubt about which name or pronoun to use, ask (appropriately and respectfully). Education is key, and open conversations are essential.
While not strictly necessary, employers may wish to consider adding “gender identity” (and “sexual orientation”) to non-discrimination policies. While neither Pennsylvania nor federal anti-discrimination laws list “gender identity” as a protected trait, the EEOC has held that discrimination against an individual because that person is transgender is discrimination because of “sex” and therefore is covered under Title VII of the Civil Rights Act of 1964.
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