OSHA updates federal policy on transgender bathroom use
The Occupational Safety and Health Administration (OSHA) announced new guidelines on Monday detailing best practices for restroom access for transgender workers.
The guidelines hold that transgender employees cannot be denied access to restrooms that correspond to their gender identities.
Employees are protected by Title VII of 1964 Civil Rights Act, which originally prohibited discrimination by covered employers on the basis of race, color, religion, sex or national origin.
In July 2014, President Barack Obama signed Executive Order 13672 which expanded protection of federal workers to include gender and sexual identities in addition to those also listed in Title VII.
Later that year, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced a Final Rule which implemented that order.
The guidelines are also consistent with a historic ruling in April from the US Equal Employment Opportunity Commission (EEOC) who decided that such denial of services to trans people is a form of gender-based discrimination.
The precedent established by the EEOC’s decision came after a case was brought against the Army by Tamara Lusardi.
Lusardi, an established civilian employee at the Army’s Aviation and Missile Research Development and Engineering Center, transitioned in 2010. Lusardi had previously agreed to use the single occupancy restroom, but when it was out of order, she used the women’s restroom.
Her supervisor continued to refer to her with male pronouns and confronted her on multiple occasions for using the women’s bathroom.
The EEOC decided that such practices intentionally did not recognize Lusardi’s identity. “The decision to restrict Complainant to a ‘single shot’ restroom isolated and segregated her from other persons of her gender,” the Commission said. “It perpetuated the sense that she was not worthy of equal treatment and respect.” Thus, the treatment Lusardi was subjected to was not compliant to the law.
OSHA policies cover private sector workers through Federal OSHA or through OSHA approved state programs. State programs also cover state and local government workers.
The distinction between OSHA guidelines and their standards is that “standards are mandatory, enforceable rules that must be followed,” according to Matt McKay of Demand Media. “OSHA guidelines are voluntary recommendations for compliance with general workplace safety and training initiatives where standards have not been defined.”
Although the guidelines are not binding in a criminal court, they establish a correct way of action that is generally convincing to juries and judges in civil cases.
“OSHA is making clear that denying something basic as restroom access to transgender workers is not only an assault on dignity and their rights, but a threat to their health as well,” said NCTE policy director Harper Jean Tobin. “All employers should take note, and workers should use this document as another tool to assert their rights.”
The guidelines serve as a further clarification of existing rules that require employers to provide all employees with prompt access to sanitary restrooms. OSHA stressed failing to provide transgender employees with restrooms consistent with their gender identity can prevent them from using bathrooms at all, which can lead to health issues like urinary tract infections and bladder problems.
OSHA’s announcement came after last month’s establishment of an alliance with the National Center for Transgender Equality (NCTE). NCTE pushes interpretation to cover non-binary trans people, as the guidelines leave determination of the safest and most appropriate course of action to the employee. “It is NCTE’s position that this guideline extends important protection to non-binary trans people,” says their website. “As people of all gender identities must be allowed to decide which restroom best suits their needs.”
OSHA encourages employees who have faced this discrimination to file a complaint with OSHA or the EEOC. For more information on laws protecting transgender employees, visit NCTE’s Know Your Rights page.
While we are all different, there are parts of our identities, our shared experiences, that make us all the same.September 21, 2016
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