Legal Requirements

Employers are legally required to provide workers reasonable access to restroom facilities. The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) requires that employers make toilet facilities available so that employees can use them when they need to do so, and the employer may not impose unreasonable restrictions on employee use of the facilities.

Further, OSHA has issued guidance to employers on best practices regarding restroom access for transgender workers. The core principal of these guidelines is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.

No federal, state or municipal laws or regulations specifically pertaining to gender identity require employers to utilize one type of bathroom over another, or to construct new facilities to accommodate transgender individuals. However, some jurisdictions regulate aspects of these restrooms. For example, the District of Columbia requires single-occupant restroom facilities in any public space (e.g., restaurants) to be gender neutral – restrooms designed for use by one individual at a time may not have a specific gender designation with "male" or "female" signage or icons – but does not require employers to have single-occupant restrooms instead of another type.

Please note that other laws and regulations (unrelated to gender identity) governing commercial or public accommodations may require the use of one type of restroom over another.

• Memorandum on Toilet Facilities [osha.gov], a report for regional administrators and state designees for the U.S. Department of Labor's Occupational Safety and Health Administration (April 6, 1998)
• Cities and Counties with Non-Discrimination Ordinances that Include Gender Identity. This resource can be found on HRC.org.

Recommendation

Allow employees to access gender-segregated facilities such as locker rooms and bathrooms corresponding to the gender with which they identify. Co-workers uncomfortable with a transgender employee’s use of the same restroom or locker room should be advised to use separate facilities.

Restrooms and locker rooms can be a challenging topic for transgender and non-transgender employees alike. Allowing employees to use the facility that corresponds with their gender identity not only dignifies transgender people, it also ensures that the employer is not in violation of Occupational Safety and Health Administration (OSHA) regulations or of local or state non-discrimination laws where they exist. Further, preventing a transgender person from using the restroom that corresponds with their gender identity and expression may be construed as discriminatory under Title VII of the Civil Rights Act.

Remember that many people value privacy, not just transgender employees – so employers may consider creating single-use, gender-neutral restrooms for all employees to use in addition to gender-segregated restrooms. Keep in mind that any decision to require transgender employees to use a certain restroom could be discriminatory and could lead to liability risks for the employer.

Where multiple occupant, gender-segregated restrooms already exist, employers may can enhance privacy with features such as flaps to cover gaps in stall doors or stall walls and doors that extend from floor to ceiling.

For locker rooms, employers should create private changing areas using stalls or curtains. Most employers can create at least one such area with minimal trouble or investment. Further, where showering facilities are necessary, it is best for the privacy of all employees to have individual stalls. Again, where building facilities and options are limited, having at least one private, single stall shower will accommodate employees desiring additional privacy.Employers should grant unrestricted restroom access and use according to an employee's full-time gender presentation. No single solution will work for every worksite, however, all employers need to find solutions that are safe, convenient and respect transgender employees; working with your transgender employees to devise a practical and dignified solution to restroom access issues is essential.

While no single solution will work for every worksite, employers committed to transgender inclusion should be able to find reasonable solutions that maintain the dignity and respect of all their employees.

​Reasonable Restroom Access Options

Employers' options for reasonable restroom access may be limited by the physical set-up of their office, industrial or retail facilities. Fortunately, any of the following options can be employed.

• Multiple-occupant, gender-segregated restroom facilities with lockable single-occupant stalls.
  • These are the most common type of bathroom, and should work for transgender employees and their colleagues. However, transgender people are often harassed for being perceived to be of a different gender from a particular bathroom's gender designation, particularly in public settings where the restrooms' users may not be accustomed to transgender people. When possible, gender-segregated facilities can be retrofitted to enhance privacy (see "Privacy in Restrooms" below) and can sometimes be paired by a single-occupant, gender-neutral facility when possible.
• Single-occupant, gender-neutral restroom facilities.
  • These one-room facilities are equipped with a sink, toilet and optional urinal, and typically exist in the form of family access bathrooms and bathrooms accessible to people with disabilities and are also available on airplanes, buses and at public events. Single-occupant restrooms should not be restricted to a specific gender, which can cause confusion when individuals are perceived to be of a different gender from the bathroom’s designation. Restricting single-occupant restrooms by gender can also unnecessarily cause people of the same gender to wait even while the restroom for the other gender is unoccupied.
• Multiple-occupant, gender-neutral restroom facilities with lockable single-occupant stalls.
  • These facilities are generally modified versions of gender-segregated restroom facilities with enhanced privacy features.

Privacy in Restrooms

Users of multiple-occupant restrooms might appreciate the following privacy enhancements:

• Install flaps on the outer edge of stall doors to cover the gap between the door and the stall wall.
• Extend stall doors and walls from floor to ceiling.
• Extend privacy dividers between urinals further out from the wall, and to a higher level.

Locker Rooms

Ensure private shower and changing areas in locker rooms and other facilities using stalls or curtains.

To view a sample restroom policy, click here.