This past legislative session, Florida lawmakers put forth a bill which would have required transgender individuals to use the restroom of their assigned gender from birth. The bill underwent several amendments since, as it was originally drafted, it would have criminalized what many consider normal behavior (i.e. a mother taking her male baby or toddler into a women’s room, or women using an empty men’s bathroom because the women’s restroom was too busy, etc.). However, the bill died before the legislative session ended which left the bathroom bill in limbo.
Now, this week, the Department of Labor’s Occupational Safety and Health Administration (“OSHA”) issued guidance for employers regarding transgender bathroom access. The four (4) page publication can be found here.
Most trans-gender individuals utilize bathrooms out in the public without problems. But, in the workplace, transitioning or transgender employees may have been known by their prior gender. And, in a large workplace it is not uncommon to have a couple of coworkers complain about the bathroom issue. As a result, employers should be reviewing their policies and procedures and need to be paying attention to these issues.
- Employers should provide convenient and unfettered bathroom access. Requiring employees to travel to use a restroom or to limit their liquid intake is inappropriate and against OSHA regulations.
- If possible, provide all employees with neutral sex or single sex toilet facilities (this is the private family care bathroom that is often available in public settings that is private and can be utilized by either gender).
- Permit transgender employees to use the restroom for the gender they are presenting.
- Management should communicate to all employees that a transgender employee or customer is permitted to utilize the bathroom that matches the gender they are presenting.
- Employers should review their nondiscrimination policies and make sure that they include language prohibiting discrimination based on transgender and gender nonconformity.
See my earlier post about Title VII protections for transgender employees.
Dori K. Stibolt is an attorney with the law firm of Fox Rothschild LLP. Dori defends and counsels management in labor and employment litigation matters pertaining to wage and overtime claims, discrimination, harassment, retaliation, leave/restraint, and whistle-blower claims. You can contact Dori at 561-804-4417 or firstname.lastname@example.org.