OSHA:
The Occupational Safety and Health Administration (OSHA) recently released new “best practices” guidance regarding restroom access for transgender employees. Citing potential psychological harm to employees not able to use restrooms corresponding with their gender identity, and potential negative health effects of not using workplace restrooms at all, OSHA recommends employers allow employees to use the restroom of the gender with which they identify. OSHA’s guidance is not a standard or regulation, and it creates no new legal obligation.
OSHA recommends allowing transgender employees, without requiring proof of legal or medical changes, to use whichever restroom corresponds with their gender identity. OSHA cautions that requiring such individuals to use separate facilities from the rest of the employees may lead to his or her feeling isolated from peers, the report suggests offering an additional gender-neutral facility. OSHA’s recommendations may be found at: http://www.dol.gov/asp/policy-development/TransgenderBathroomAccessBestPractices.pdf
EEOC:
On April 1, 2015, the Equal Employment Opportunity Commission (“EEOC”) interpreted Title VII’s prohibition against sex discrimination and found it to apply to an employer who denied transgender employees access to the restroom that corresponds with their gender identity. Tamara Lusardi, Complainant. This holding is not binding on Ohio employers, but the EEOC may be more aggressive, post Lusardi, to pursue potential violations. With that being noted, Sixth Circuit case law, which governs Ohio, does not recognize an employer’s denial of access of a transgender employee to the restroom that corresponds with their gender identity as a Title VII violation.
State of the Law:
Case law applicable to Ohio employers provides that an employer does not discriminate against transgender employees when denying them the ability to use the restroom that corresponds with their gender identity. Johnson v. Fresh Mark, Inc.
The distinction between employers targeting an employee because of his or her being transgender for adverse employment actions (violation of Title VII) and disallowing his or her use of gender-specific restrooms according to their self-identified gender (not a violation of Title VII) may seem disjointed, but it is the current state of the law in the Court of Appeals. The Court of Appeals has held that it is illegal under Title VII to treat an individual differently because of stereotypical notions of how a gender should act or behave. Barnes v. City of Cincinnati.
Employer Takeaway:
If at all possible, employers should work with transgender employees to develop a restroom access plan beneficial to all. This will help reduce the possibility of discrimination claims that may be costly to defend against even when the employer prevails. Nonetheless, an employer does not discriminate against an employee if it restricts restroom access to the restroom corresponding with a transgender employee’s actual sex, not the sex with which they identify. Given the EEOC’s and OSHA’s aggressive position it is wise to consult legal counsel when faced with this issue.
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