OSHA and Employment in the Workplace Bathroom: Transgender, ADA, Sanitation and Accessibility Issues

By Jordan B. Schwartz and Eric J. Conn

OSHA has long enforced sanitation and accessibility standards for restrooms for workers – an idea that generally makes sense viewed as a health concern.  In the last few years, however, new policies at the state and federal levels on transgender issues mean all employers must pay particular attention to rules and enforcement regarding access to restrooms.bathroom

Indeed, OSHA has now found a way into the highly political and social issue of transgender equality by making its own policy pronouncements on access by workers to restrooms of the gender with which they identify.  In 2015, Assistant Secretary of Labor for OSHA Dr. David Michaels explained the Agency’s position on this when he unveiled a new OSHA Guide to Restroom Access for Transgender Workers, he said:

“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

The emergence of bathroom issues from a legal and regulatory standpoint is not limited to the controversial transgender issue.  This article addresses the complexities of this subject and how it affects regulatory compliance and employment law liabilities.

OSHA Bathroom Requirements

In terms of bathroom access, there are two OSHA concerns primarily at play (aside from the new transgender issue), which often overlap:

  1. providing employees with prompt access to a bathroom; and
  2. ensuring the workplace bathroom is maintained in a sanitary condition.

Toilets must be provided and accessible to all employees at every fixed work site. This means Continue reading

Bathroom Break: OSHA Bathroom Issues, ADA Accessibility, and Transgender Bathrooms [Webinar Recording]

On December 13, 2016, Eric J. Conn and Jordan Schwartz of Conn Maciel Carey’s national Labor and Employment and OSHA Practices, for a complimentary webinar regarding Employee Access to Sanitary Bathrooms, ADA Accessibility, and Transgender Bathrooms. bathroom-webinar-cover-slide

Although not historically a hotbed of OSHA / Employment law activity, access to bathrooms by both employees and members of the public has become a high profile issue of late.  OSHA has always required employers to provide employees with prompt access to sanitary toilet facilities, to minimize adverse health risks.  Recently, however, OSHA and other federal, state and local authorities began to prohibit discriminatory practices with regard to restroom access based on the principle that individuals have the right to use facilities consistent with their gender identity.  There are also a host of requirements under the Americans with Disabilities Act that must be met for a bathroom to be considered accessible and usable by an individual with a disability.  This webinar reviewed the requirements in these areas, and provided specific strategies to address this new and complex area of the law.

Participants in this complimentary webinar learned about the following:

  • OSHA rules regarding accessibility to bathroom facilities and sanitation issues
  • Transgender workplace obligations
  • Federal Agency Interpretations of Title VII to include discrimination based on gender identity or transgender status
  • State laws regarding discriminatory practices in regard to restroom access
  • Best practices for overcoming typical bathroom ADA accessibility issues

Here is a link to recording of the webinar.  If you missed Continue reading

OSHA, EEOC and the Dept. of Justice Weigh In On Transgender Rights in the Workplace

In the last few months, hardly a day has gone by without some news regarding transgender bathroom access.  Perhaps the catalyst for the increased attention on this issue was North Carolina’s passage of its controversial H.B. 2 law which, among other things, restricts transgender people’s access to public restrooms and blocks local governments from passing NC Bathroom Lawanti-discrimination laws to protect LGBT individuals.

Notably, the American Civil Liberties Union (“ACLU”) has since filed a lawsuit in federal court challenging that law, and seeking an injunction preventing the State from enforcing it.  On May 4, 2016, the U.S. Department of Justice sent a letter to North Carolina Governor Pat McCrory saying the state’s controversial law restricting bathroom access for transgender persons is in violation of federal civil rights laws prohibiting employment discrimination.

The ACLU has also successfully challenged other entities that it believed were infringing on transgender rights.  For example, the U.S. Court of Appeals for the Fourth Circuit recently sided with the ACLU and ruled that a transgender high school student who was born as a female but was barred from using the boys’ bathroom can sue his school board for discrimination.  In that case, the Fourth Circuit accepted the federal government’s interpretation of discrimination as including discrimination against transgender individuals and thus deferred to the U.S. Education Department’s position that transgender students should have access to the bathrooms that match their gender identities, rather than being forced to use bathrooms that match their biological sex.OSHA Bathroom Image

As a byproduct of the increasing visibility of this issue, both the U.S. Equal Employment Opportunity Commission (“EEOC”) and Occupational Safety and Health Administration (“OSHA”) have strongly supported transgender rights.  Indeed, last year, OSHA promulgated its “Transgender Restroom Access Guide” with the core Principle that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.  OSHA linked this to safety and health by reasoning that:

Continue reading