OSHA Combats Discrimination Against Transgender Employees

Yarelyn Mena

The Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) has brought gender identity as it pertains to restrooms at the workplace at the center of employment law discourse. Under OSHA’s Sanitation Standard, employers are required to provide their employees with toilet facilities. Restrooms are a factor of the workplace that has gone unnoticed by most workers as a simple, must-have feature. The dichotomy of male and female restrooms that has been the default, has been revised by OSHA to protect the rights of employees who identify with a gender identity that does not socially conform with their sex.

Transgendered people fall under this characteristic as people whose “internal gender identity is different from the sex they were assigned at birth.” Researchers at the Williams Institute at the University of California- Los Angeles estimated that there are about 700,000 transgender adults in the United States. Knowing which bathroom to use poses a difficult question for transgender employees who are afraid of harassment from other employees who see them enter a different restroom from their gender identity. This situation is maximized when a transgender employee is in the process of transitioning from living as the gender they were born with, to the gender they identify with, while employed. Often times transitioning employees are ridiculed by others in the workplace who do not understand the process. Making this process and daily life for transgender employees an easy, fair process can begin with restrooms.

All employers are required to implement safe, fair and convenient practices for their transgender employees. Taking the steps to adjust restrooms is helpful not only to the transgender employees, but also for other employees who should be cognizant of gender identity. Employers must educate their employees to make the workplace as inclusive as possible and ensure a positive working environment. OSHA listed the best non-mandatory practices surrounding restroom use that some employers have been known to implement, including: single gender-neutral facilities and gender-neutral facilities with lockable single occupant stalls. These policies are deemed to be the best because they do not require employees to disclose documentation about their gender identity or transgender status to their employer.

There are many other departments and laws that work in conjunction with OSHA’s aim to protect employees and their gender identity. The primary agencies are the Equal Employment Opportunity Commission (EEOC), the Department of Justice (DOJ) and the DOL. Each agency has adopted provisions against gender and sexual orientation discrimination using several court rulings and prohibitions in Title VII of the Civil Rights Act of 1964 as the foundation. To guarantee safe participation in our workforce, employers and employees must support inclusive practices in the workplace for all workers.

If you believe your employer has discriminated against you because of your sexual orientation or gender, please contact The Harman Firm, LLP.