By Frank Harty
As a sign of the rancorous nature of current American culture, in the New York legislature the democratic minority accused the republican majority of unethical behavior in the form of failing to provide the proper amount and quality of bathroom tissue. While the dispute provided material for satirists, bathroom access is no laughing matter. One issue Iowa employers are dealing with involves restroom facilities for transgendered individuals.
Under the Occupational Safety and Health Administration’s (OSHA) sanitation standards “toilet facilities, in toilet rooms separate for each sex, shall be provided in all places of employment.” 29 CFR 1910.141(c). This may seem fairly straight forward – unless an Iowa employer is dealing with a transgender employee. Toilets for “each sex” gets a little more complicated when an individual is undergoing or has undergone gender reassignment.
The federal government has weighed in on the issue. OSHA’s “best practice” guidance advises employers to allow transgender employees to have access to restrooms that “correspond to their gender identity.” OSHA, A Guide to Restroom Access for Transgender Workers (available at http://www.osha.gov/publications/osha3795pdf).
Recently, another arm of the federal government, the EEOC, took a formal position on bathroom access. See Lusardi v. McHugh, EEOC Appeal No. 0120133395, 2015 WL 1607756 (April 1, 2015). In Lusardi, the EEOC scolded a supervisor who directed an employee to use a (non-assigned) restroom until the employee underwent “an undefined surgery.” Id. at *2. The decision held that transitioning employees should not be required to “provide proof of any particular medical procedure” before using a facility of their choice. Id. at *3.
On a related matter, the Court of Appeals for the Fourth Circuit recently gave deference to Department of Education regulations dictating that transgender individuals be allowed to use a restroom of their choice. G.G. v. Gloucester County School Board, No. 15-2056, 2016 WL 1567467 (4th Cir. 2016).
While there is no Iowa authority directly on point, most Iowa employers are advised to follow the so-called “Canadian Rule” allowing transgender employees to use the restroom that corresponds with their gender identity.
While this may seem easy when it comes to toilet use, employers providing locker and shower facilities will be dealing with tougher issues for some time.