In the spring of 2015, the U.S. Department of Labor’s (DOL) Occupational Safety and Health Administration (OSHA) issued guidelines for employers delineating the specific requirements for gender identity and the use of restrooms. Since that statement went public, there has been a trend in many corporate offices towards gender-neutral restrooms.

Given federal and New Jersey State laws’ strict language prohibiting discrimination in the workplace, it is unclear whether gender neutral restrooms are the ideal solution, legally or socially. Employers have a clear obligation to adhere to the OSHA statement’s core principle: All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.

According to the Williams Institute at the University of California-Los Angeles, an estimated 700,000 adults in the United States are transgender. Gender-specific restrooms — a legacy of the Industrial Revolution — are still the standard in most corporate offices, schools and public buildings. The confusion that may arise when a transgender man or woman approaches a restroom has stimulated near panic in more conservative states.

Legally, employers are obliged to provide every employee with a restroom that is appropriate for his or her gender. The OSHA guidelines specify that “gender” is defined by the employee, meaning the gender of the employee’s identity, not of their birth.  Co-workers’ comfort level is irrelevant. In practice, this can get more complicated than perhaps it should.  In recent cases around the country, employees have raised their personal discomfort and fear as to how a transgender person could threaten the safety of other bathroom users. There are no reported cases nationwide to support that fear.  With all the fuss about their bathroom use, transgender men and women report increasing fears of being beaten up or molested by their vocal detractors on the right.

Employers who grapple with discrimination and fear mongering in the workplace have turned to the OSHA guidelines for help. The law does not address the issue of discomfort, and many employers face the challenge of enforcing the letter of the law. In response, OSHA officials advise employers to invoke the power of government: The employers have to comply with federal law.

Transgender men and women face discrimination in many places, including the workplace, where they may choose to hide their identities rather than face unfair treatment and bullying. While the law has no power over ignorance, there is recourse when any employee is the victim of discrimination. If you face discrimination of any kind at work, contact an experienced employment law attorney for workers. At Hanan M. Isaacs, P.C. we offer compassionate counsel and tough advocacy to New Jersey residents. Call 609-683-7400 today to schedule a reduced rate initial consultation.  You will be glad you did.