OSHA3795

Transcript

1 Practices Best A Guide to Restroom Access for Transgender Workers All employees, including transgender employees, should Core principle: have access to restrooms that correspond to their gender identity. everyone—it may involve social changes (such Introduction as going by a new first name), medical steps, and The Department of Labor’s (DOL) Occupational changing identification documents. Safety and Health Administration (OSHA) requires that all employers under its jurisdiction Why Restroom Access Is a Health provide employees with sanitary and available and Safety Matter toilet facilities, so that employees will not suffer the adverse health effects that can result if Gender identity is an intrinsic part of each toilets are not available when employees need person’s identity and everyday life. Accordingly, them. This publication provides guidance to authorities on gender issues counsel that it is employers on best practices regarding restroom essential for employees to be able to work in a access for transgender workers. OSHA’s goal manner consistent with how they live the rest of is to assure that employers provide a safe and their daily lives, based on their gender identity. all healthy working environment for employees. Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring Understanding Gender Identity them to use gender-neutral or other specific In many workplaces, separate restroom and other restrooms, singles those employees out and may facilities are provided for men and women. In make them fear for their physical safety. Bathroom some cases, questions can arise in the workplace restrictions can result in employees avoiding using about which facilities certain employees should restrooms entirely while at work, which can lead to use. According to the Williams Institute at potentially serious physical injury or illness. the University of California-Los Angeles, an estimated 700,000 adults in the United States OSHA’s Sanitation Standard gender —meaning their internal transgender are identity is different from the sex they were (1910.141), OSHA’s Sanitation standard Under assigned at birth (e.g., the sex listed on their birth employers are required to provide their transgender man certificate). For example, a may employees with toilet facilities. This standard is have been assigned female at birth and raised as intended to protect employees from the health a girl, but identify as a man. Many transgender effects created when toilets are not available. transition to live their everyday life as the people Such adverse effects include urinary tract gender they identify with. Thus, a transgender infections and bowel and bladder problems. man may transition from living as a woman to OSHA has consistently interpreted this standard living as a man. Similarly, a transgender woman to require employers to allow employees prompt may be assigned male at birth, but transition to access to sanitary facilities. Further, employers living as a woman consistent with her gender may not impose unreasonable restrictions on identity. Transitioning is a different process for employee use of toilet facilities. 1 www.osha.gov 1-800-321-OSHA (6742)

2 several court rulings, have interpreted prohibitions Model Practices for Restroom Access on sex discrimination, including those contained in for Transgender Employees , to prohibit Civil Rights Act of 1964 Title VII of the Many companies have implemented written employment discrimination based on gender employees—including policies to ensure that all identity or transgender status. In April 2015, the transgender employees—have prompt access DOL’s Office of Federal Contract Compliance to appropriate sanitary facilities. The core belief Programs (OFCCP) announced it would require underlying these policies is that all employees federal contractors subject to Executive Order should be permitted to use the facilities that 11246, as amended, which prohibits discrimination correspond with their gender identity. For based on both sex and gender identity, to allow example, a person who identifies as a man transgender employees to use the restrooms should be permitted to use men’s restrooms, and other facilities consistent with their gender and a person who identifies as a woman should identity. Also in April 2015, the EEOC ruled that a be permitted to use women’s restrooms. transgender employee cannot be denied access to The employee should determine the most the common restrooms used by other employees appropriate and safest option for him- or herself. of the same gender identity, regardless of whether that employee has had any medical procedure The best policies also provide additional options, or whether other employees’ may have negative which employees may choose, but are not reactions to allowing the employee to do so. The required, to use. These include: EEOC held that such a denial of access constituted • Single-occupancy gender-neutral (unisex) direct evidence of sex discrimination under Title VII. facilities; and The following is a sample of state and local legal • Use of multiple-occupant, gender-neutral provisions, all reaffirming the core principle that restroom facilities with lockable single employees should be allowed to use the restrooms occupant stalls. that correspond to their gender identity. Regardless of the physical layout of a worksite, all Colorado: Rule 81.9 of the Colorado regulations employers need to find solutions that are safe and requires that employers permit their employees convenient and respect transgender employees. to use restrooms appropriate to their gender Under these best practices, employees are identity rather than their assigned gender at not asked to provide any medical or legal birth without being harassed or questioned. documentation of their gender identity in order 3 CCR 708-1-81.9 (revised December 15, 2014), to have access to gender-appropriate facilities. In available at http://cdn.colorado.gov/cs/Satellite/ addition, no employee should be required to use DORA-DCR/CBON/DORA/1251629367483 . a segregated facility apart from other employees For more information refer to: “Sexual because of their gender identity or transgender Orientation & Transgender Status status. Under OSHA standards, employees Discrimination—Employment, Housing & generally may not be limited to using facilities Public Accommodations,” Colorado Civil Rights that are an unreasonable distance or travel time http://cdn.colorado.gov/cs/ Division, available at: from the employee’s worksite. . Satellite/DORA-DCR/CBON/DORA/1251631542607 Other Federal, State and Local Laws Guidance from the Delaware Delaware: Department of Human Resource Management Employers should be aware of specific laws, with access provides Delaware state employees rules, or regulations regarding restroom access to restrooms that correspond to their gender in their states and/or municipalities, as well identity. The guidance was issued pursuant to the as the potential application of federal anti- state’s gender identity nondiscrimination law. discrimination laws. Delaware’s policy also suggests: Whenever The Equal Employment Opportunity Commission practical, a single stall or gender-neutral restroom (EEOC), the Department of Justice (DOJ), DOL, may be provided, which all employees may utilize. and several other federal agencies, following 2 www.osha.gov 1-800-321-OSHA (6742)

3 However, a transgender employee will not be is consistent with their gender identity. Where compelled to use only a specific restroom unless single occupancy restrooms are available, the Commission recommends that they be all other co-workers of the same gender identity designated as “gender neutral.” are compelled to use only that same restroom. For more information refer to: “Guide to For more information refer to: State of Delaware Sexual Orientation and Gender Identity and the Guidelines on Equal Employment Opportunity Washington State Law Against Discrimination,” and Affirmative Action Gender Identity, available www.hum.wa.gov/ http:// available at: at: http:// www.delawarepersonnel.com/policies/ . Documents/Guidance/GuideSO20140703.pdf documents/sod-eeoc-guide.pdf . Rule 4-802 of the D.C. District of Columbia: Additional Information Municipal Regulations prohibits discriminatory practices in regard to restroom access. American Psychological Association. • Individuals have the right to use facilities Answers to your questions about transgender consistent with their gender identity. In people, gender identity and gender expression, addition, single-stall restrooms must have 2011: http:// www.apa.org/topics/lgbt/ gender-neutral signage. D.C. Municipal transgender.aspx . Regulations 4-802, “Restrooms and Other • Transgender Law Center’s model employer Gender Specific Facilities,” available at: http:// policy, with an extensive section on restrooms, www.dcregs.dc.gov/Gateway/RuleHome. can be found at: http://transgenderlawcenter. . aspx?RuleNumber=4-802 org/wp-content/uploads/2013/12/model- . workplace-employment-policy-Updated.pdf Iowa: The Iowa Civil Rights Commission requires “Restroom Access for Transgender • that employers allow employees access to Employees” on Human Rights Campaign restrooms in accordance with their gender www.hrc.org/resources/entry/ website: http:// identity, rather than their assigned sex at birth. restroom-access-for-transgender-employees . National Gay and Lesbian Task Force • For more information refer to: “Sexual and the National Center for Transgender Orientation & Gender Identity – An Employer’s Equality. National Transgender Discrimination Guide to Iowa Law Compliance,” Iowa http://endtransdiscrimination.org/ Survey, 2011: Civil Rights Commission, available at: . report.html https://icrc.iowa.gov/sites/files/civil_rights/ . publications/2012/SOGIEmpl.pdf How OSHA Can Help The Vermont Human Rights Vermont: OSHA has a great deal of information to Commission requires that employers permit assist employers in complying with their employees to access bathrooms in accordance responsibilities under the law. Information on with their gender identity. OSHA requirements and additional health and For more information refer to: “Sex, Sexual safety information, including information on Orientation, and Gender Identity: A Guide OSHA’s Sanitation standard, is available on the to Vermont’s Anti-Discrimination Law for ). agency’s website ( www.osha.gov Employers and Employees,” Vermont Human www. Workers have a right to a safe workplace ( Rights Commission, available at: http://hrc. ). The law requires osha.gov/workers.html#2 vermont.gov/sites/hrc/files/pdfs/other%20 employers to provide their employees with reports/trans%20employment%20brochure%20 working conditions that are free of known dangers. 7-13 -12.pdf . An employer’s duty to provide a safe workplace The Washington State Human Washington: includes the duty to provide employees with Rights Commission requires employers that toilet facilities that are sanitary and available, so maintain gender-specific restrooms to permit that employees can use them when they need to transgender employees to use the restroom that do so. Employers also have a duty to protect all 3 www.osha.gov 1-800-321-OSHA (6742)

4 their employees, regardless of whether they are the country, with priority given to high-hazard transgender, from any act or threat of physical worksites. On-site Consultation services are separate from enforcement activities and do violence, harassment, intimidation, or other not result in penalties or citations. To contact threatening disruptive behavior that occurs at the work site. For more information on workplace OSHA’s free consultation program, or for violence, please see OSHA’s website at: www. additional compliance assistance, call OSHA at . osha.gov/SLTC/workplaceviolence 1-800-321-OSHA (6742). Workers who believe that they have been exposed to a hazard or who just have a question should References: contact OSHA. For example, workers may file a Department of Labor, Office of Federal Contract complaint to have OSHA inspect their workplace if Compliance Programs, 2015. “Frequently Asked Questions http://www.dol.gov/ EO 13672 Final Rule”, available at: they believe that their workplace is unsafe or that . ofccp/lgbt/lgbt_faqs.html#Q35 their employer is not following OSHA standards. National Center for Transgender Equality and National Just contact OSHA at: 1-800-321-OSHA (6742), or Gay and Lesbian Task Force, 2011 at 56 (noting that only . Complaints that are signed by www.osha.gov visit 22% of transgender people have been denied access to gender-appropriate restrooms), available at: http:// an employee are more likely to result in an on-site . endtransdiscrimination.org/report.html inspection. It’s confidential. We can help. Gates, Gary J., How many people are lesbian, gay, bisexual, The Occupational Safety and Health Act and transgender? Williams Institute, UCLA School of Law, (OSH Act) http://williamsinstitute.law. 2011. Retrieved 5/18/2015 from: prohibits employers from retaliating against their ucla.edu/wp-content/uploads/Gates-How-Many-People- employees for exercising their rights under the . LGBT-Apr-2011.pdf OSH Act. These rights include raising a workplace Grant, Jaime M., Lisa A. Mottet, Justin Tanis, Jack Harrison, health and safety concern with the employer, Jody L. Herman, and Mara Keisling. Injustice at Every Turn: A Report of the National Transgender Discrimination reporting an injury or illness, filing an OSHA Survey. Washington: National Center for Transgender complaint, and participating in an inspection Equality and National Gay and Lesbian Task Force, 2011 at 56 (noting that only 22% of transgender people have been or talking to an inspector. If workers have been denied access to gender-appropriate restrooms), available retaliated against for exercising their rights, they at: . http://endtransdiscrimination.org/report.html must file a complaint with OSHA within 30 days of Lusardi v. McHugh, EEOC Appeal No. 0120133395 (Apr. 1, the alleged adverse action. For more information, 2015), available at: http://transgenderlawcenter.org/wp- . content/uploads/2015/04/EEOC-Lusardi-Decision.pdf please visit www.whistleblowers.gov . Macy v. Holder, EEOC Appeal No. 0120120821 (2012); OSHA can also help answer questions or Attorney General Memorandum, Treatment of Transgender concerns from employers. To reach your closest Employment Discrimination Claims (Dec. 15, 2015). Retrieved 5/18/2015 from: http://www.justice.gov/sites/default/files/opa/ OSHA regional or area office, go to OSHA’s . press-releases/attachments/2014/12/18/title_vii_memo.pdf Regional and Area Offices webpage ( www.osha. Memorandum to Regional Administrators and State gov/html/RAmap.html ) or call 1-800-321-OSHA Designees of the Occupational Safety and Health (6742). OSHA also provides free, confidential Administration on the Interpretation of 29 CFR 1910.141(c) (1)(i): Toilet Facilities (Apr. 6, 1998), available at: www. on -site assistance and advice to small and osha.gov/pls/oshaweb/owadisp.show_document?p_ medium-sized employers in all states across table=INTERPRETATIONS&p_id=22932 . Disclaimer: This document is not a standard or regulation, and it creates no new legal obligations. It contains recommendations as well as descriptions of mandatory safety and health standards. The recommendations are advisory in nature, informational in content, and are intended to assist employers in providing a safe and healthful workplace. The Occupational Safety and Health Act requires employers to comply with safety and health standards and regulations promulgated by OSHA or by a state with an OSHA-approved state plan. In addition, the Act’s General Duty Clause, Section 5(a)(1), requires employers to provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. U.S. Department of Labor OSHA 3795-2015

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