OSHA Transgender Restroom Guidance in Doubt

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By Bruce Rolfsen

Transgender rights advocates are anxious OSHA’s favorable guidance on workplace restrooms could be overturned by the Trump administration.

Sparking the doubt is a Feb. 22 letter from the departments of Justice and Education announcing the departments revoked their earlier guidance allowing transgender students to choose school restrooms based on their self-declared sexual identity.

“We are certainly concerned,” Harper Jean Tobin, director for policy at the National Center for Transgender Equality, told Bloomberg BNA Feb. 23.

The center and the Occupational Safety and Health Administration in April 2015 signed an alliance agreement to share best practices and promote workers’ rights.

In June 2015, OSHA issued its first employer guidance covering restrooms for transgender workers saying all employees should have access to restrooms that correspond to their self-declared gender identity. Having a separate restroom for transgender employees wasn’t acceptable.On Feb. 23, OSHA didn’t respond to Bloomberg BNA questions about the guidance. In the past, agency representatives told Bloomberg BNA that because the guidance wasn’t a rule or directive, the best practices were recommendations, not requirements.

Attorneys handling workplace issues involving transgender employees told Bloomberg BNA that while they don’t see the letter by itself impacting labor issues handled by the Equal Employment Opportunity Commission (EEOC), their opinions were split on the future of OSHA’s guidance.

Lariza Hebert, a workplace law attorney with Fisher & Phillips LLP in San Antonio, said the Obama administration OSHA didn’t show much interest in actively enforcing the transgender guidance.

There is no reason to believe that the Trump administration won’t attempt to rescind similar guidance throughout its agencies, Hebert told Bloomberg BNA Feb. 23.

OSHA Followed Others

The OSHA guidance, in part, was based on rulings from the EEOC, an independent federal agency, and Department of Labor requirements for federal contractors.

In April 2015, the EEOC ruled that a transgender employee cannot be denied access to restrooms used by other employees of the same gender identity, regardless of whether that employee has had any medical procedure or whether other employees may have negative reactions to allowing the employee to do so.

Denying access was evidence of sexual discrimination prohibited by Title VII of the Civil Rights Act of 1964, banning employers from discriminating against employees on the basis of several factors including sex.

The EEOC-related rulings OSHA deferred to would be more difficult to reverse than simply releasing another letter, attorneys said.

`Big Issue’

Lawyer Denise Visconti, whose practice at Littler Mendelson PC in San Diego focuses on employment litigation, said the letter doesn’t change Title VII, interpreted by federal agencies and courts to prohibit discrimination based on gender identity and expression in employment.

“As a result, I do not see the Trump administration’s decision yesterday to have modified any legal precedent, nor do I expect the decision to change guidance from federal agencies as relates to employers,” Visconti told Bloomberg BNA Feb. 23.

Barbara Hoey, chair of the labor and employment practice group at Kelley Drye & Warren LLP in New York City, said the Feb. 22 letter nevertheless shows the Trump administration will make rights for lesbian, gay, bisexual and transgender people a “big issue.”

“In light of that, I would not be surprised to see a shift at the EEOC,” Hoey told Bloomberg BNA Feb. 23.

To contact the reporter on this story: Bruce Rolfsen in Washington at BRolfsen@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

The Department of Justice letter is available at http://src.bna.com/mrN.

OSHA transgenderal guidance is available at http://src.bna.com/mrP.

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