If it looks like a duck and walks like a duck, but is not a duck where can it go to the bathroom?

Employers cannot restrict the use of restrooms based upon their impression of gender.
Employers cannot restrict the use of restrooms based upon their impression of gender.

Transgenderism and gender identity have been in the news a great deal lately. The EEOC’s position is that an individual is whatever they identify as being when it comes to gender. For most people that works when it comes to hair and clothing but what about going to the bathroom? Some people get very uncomfortable using the same restroom with someone who “says” they are one thing but are not yet “officially.” What is an employer to do?

OSHA shows the way

OSHA has produced a document called “A Guide to Restroom Access for Transgender Workers.” In case you are wondering why this is a safety issue, they answer the question by saying:

Restricting employees to using only restrooms that are not consistent with their gender identity, or segregating them from other workers by requiring them to use gender-neutral or other specific restrooms, singles those employees out and may make them fear for their physical safety. Bathroom restrictions can result in employees avoiding using restrooms entirely while at work, which can lead to potentially serious physical injury or illness.

Best practices

The suggested best practices for restroom use is contained in the paragraph:

“..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.”

But to make it easier a company can offer multiple bathroom options which include single-occupancy gender-neutral (unisex) facilities; or the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.

OSHA requires a bathroom

OSHA does require employers to have a bathroom and does not allow you to restrict the use of those bathrooms. The EEOC steps into offer their view as well. According to attorney Amy CubbageThe EEOC ruled in April that transgender employees cannot be denied access to common restrooms used by others of the same gender identity. It does not matter whether the employee had any procedures to change the employee’s physical sex or if other employees have negative reactions to such use of the restrooms. The EEOC, in the case of Lusardi v. McHugh, took the position that such denials or segregation of transgender persons constitutes impermissible sex discrimination..”

The final point

The final point of this is if you have dog that wants to be a cat you have to let them use the cat’s sandbox if they want.

Leave a Comment

Pin It on Pinterest