Liability lawsuits--Failure by the city to provide appropriate facilities, or failure of any employee to abide by the guidelines, poses risk for a liability lawsuit. Applicable laws include sex discrimination protection under Title VII and the Minnesota Human Right Act. Other federal regulations also apply including the Family Medical Leave Act (FMLA), Health Insurance Portability and Accountability Act (HIPAA), Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA).What does OSHA have to do with it? "Under OSHA’s Sanitation standard (1910.141), employers are required to provide their employees with toilet facilities. This standard is intended to protect employees from the health effects created when toilets are not available. Such adverse effects include urinary tract infections and bowel and bladder problems. OSHA has consistently interpreted this standard to require employers to allow employees prompt access to sanitary facilities. Further, employers may not impose unreasonable restrictions on employee use of toilet facilities."
Starting the discussion Perhaps you’ve already made your employees aware of the requirements. If not you will need to make them aware of what is expected and what changes, if any, the city needs to make to restroom facilities.
To simplify the discussion it’s helpful to start with understanding gender identity. Here’s an excerpt from the OSHA Guide, an “estimated 700,000 adults in the United States are transgender—meaning their internal gender identity is different from the sex they were assigned at birth (e.g., the sex listed on their birth certificate).
For example, a transgender man may have been assigned female at birth and raised as a girl, but identify as a man. Many transgender people transition to live their everyday life as the gender they identify with. Thus, a transgender man may transition from living as a woman to living as a man. Similarly, a transgender woman may be assigned male at birth, but transition to living as a woman consistent with her gender identity.”
What needs to be done--The Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) has provided some basic guidance about these requirements. Access the link to the Guide above for information on Model Practices for Restroom Access for Transgender Employees. Specifically “Many companies have implemented written policies to ensure that all employees—including transgender employees—have prompt access to appropriate sanitary facilities. The core belief underlying these policies is that all employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms. The employee should determine the most appropriate and safest option for him- or herself.
The OSHA's Best Practices Guide also provides options which employers may choose, but are not required, to use. These include: Single-occupancy gender-neutral (unisex) facilities; use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.
Under these best practices, employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities. In addition, no employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status. Under OSHA standards, employees generally may not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite.
By Troy Walsh