Gender-Neutral Bathrooms in the Workplace

July 6th, 2015 | By Jules Halpern Associates | Discrimination, Employment Law, Gender/ Sex, OSHA/Workplace Safety, Wellness Programs

This month has been full of major breakthroughs for the LGBT community. Caitlyn Jenner became a hero to many when she decided to inform the public that she identifies as a woman and openly transitioned into her new identity. The U.S. Supreme Court issued an opinion just last week that legalized same-sex marriage for all American citizens. New guidelines issued by the Occupational Safety and Health Administration (OSHA) recommend that all employers provide transgender employees with the option of which gender-specific bathroom to use at work.

These new developments create an opportunity for us to reflect on who the LGBT community actually is and how they should be accommodated in the workplace. Very often, when we think of “LGBT,” we associate the group with “Lesbian, Gay, and Bisexual” individuals, but little is said about the “Transgenders.”

“Gender,” according to the World Health Organization, is the set of characteristics for males or females created by society, like clothing or makeup. Transgenders, as opposed to “transsexuals” can remain the same biologically, but because they associate more with the opposite gender, they transition their lifestyles to those of the opposite sex. A man, for example, may better associate with the female gender and wear makeup or dresses. Some even may take hormones to appear more like a woman.

New steps are being taken across the U.S. to protect transgenders from discrimination and harassment. Eighteen states, including New Jersey, Connecticut, and California, specifically prohibit employers from discriminating against transgenders. However, many transgenders still encounter a serious issue in their workplace; they may be required by their employers to use a bathroom that is gender-specific.

If a male who has transitioned to a female gender uses a male restroom, she risks harassment or even violence from other males using the restroom. Using the female restroom may also cause harassment from women who do not wish to share a restroom with a biological male, especially one that still appears male. In either case, employees can become uncomfortable. To avoid these situations, many transgender employees may choose not to use any restroom for the entire work day, which poses health risks.

To respond to this issue, OSHA has sent out a “best practices” guideline for employers. The guidelines recommend that workplaces either have gender-neutral facilities or allow transgender employees to choose the gender-specific restroom that would be safest for their situation. Although the guidelines do not carry the same weight of law, they demonstrate the government’s interest in shifting towards a fully gender-neutral workplace.

Cities and municipalities have been following the same pattern. Philadelphia requires all new city-owned buildings to contain gender-neutral facilities. New York City proposed legislation last week that would require all publicly accessible single-occupancy bathrooms to be gender- neutral. Additionally, building owners would have the option to remove gender-specific signs from any other bathrooms of their choosing.

Jules Halpern Associates LLC

Workplace and Education Law Advisors

Jules Halpern Associates LLC
JULES HALPERN ASSOCIATES LLC is a boutique law firm committed to serving our clients in all facets of their workplace issues. We provide personalized, practical advice that resonates with our clients’ business objectives.
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Jules Z. Halpern

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