Caitlyn Jenner, LaVerne Cox (Orange is the New Black) and the hit Amazon series “Transparent” have vaulted the topic of gender identity into virtually every home, workplace and Facebook feed in the United States. Perhaps less well-known is the “Implementation of Executive Order 13672 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors” (Final Rule) by the Department of Labor’s Office of Federal Contract Complaint Programs (OFCCP). The Final rule, which became effective on April 8, 2015, adds sexual orientation and gender identity to the list of prohibited bases for discrimination for Federal contractors.
In addition to prescribing anti-discrimination language for inclusion in all Federal contracts, the Final Rule requires Federal contractors to provide non-segregated facilities – including restrooms – for all employees regardless of sexual orientation or gender identity. To ensure access to such non-segregated restroom facilities does not threaten the health or safety of transgendered employees, the Occupational Safety and Health Administration (OSHA) recently published "Best Practices: A Guide to Restroom Access for Transgender Workers" (the Guide).
The Guide recommends that employers allow employees to use restrooms consistent with their gender identity rather than forcing employees to use either gender-neutral restrooms, or restrooms consistent with the gender assigned at birth. For example, if an employee was born as a man but identifies as a woman, according to the Guide, the employee should be permitted to use the woman’s restroom. According to the Guide, the best practice is for each employee to choose which restroom is most appropriate without having to show medical or legal necessity. OSHA warns that forcing transgendered employees to use segregated or gender-neutral restrooms risks singling out such employees, which could lead them to fear for their safety. Likewise, requiring employees to use restrooms inconsistent with their gender identity may deter employees from using the restroom while at work, which could cause adverse health consequences.
Following OSHA’s best practices, as set forth in the Guide, will not only assist employers to comply with the Final Rule, but it will also facilitate compliance with OSHA’s mandate requiring employers to provide all employees with sanitary toilet facilities. The Guide reminds employers of state and local laws, as well as other federal and administrative decisions, which also may impose requirements related to the provision of restroom facilities to transgendered employees in the workforce. Employers can find links to many of these resources within the Guide.
The benefits of reviewing the Guide and implementing its recommendations far outweigh the risks of violating either OSHA’s or the OFFCP’s rules on access to bathroom facilities. The consequences of failing to provide non-segregated access to sanitary restroom facilities could include fines, suspension, or worse, termination of a contract. In addition, given the current popularity of transgendered individuals in the media, an employer discriminating against employees based on sexual identity or sexual orientation will almost certainly face negative scrutiny, the financial consequences of which are immeasurable.
Lara Nochomovitz is responsible for the contents of this Article.
© Jackson Kelly PLLC 2015