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

In light of the law’s strict language regarding discrimination in the workplace, it is unclear if this is the ideal legal or social solution. 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 idea of a transgender person using a bathroom inconsistent with that person’s birth gender has stimulated near panic in more conservative states.

Legally, employers have an obligation to provide every employee with a bathroom that is appropriate for his or her gender. The OSHA guidelines specify that “gender” is defined by the employee, including the employee’s gender identity. The wishes of fellow or sister employees in the matter are irrelevant. In practice, this is more complex than it would seem. In recent cases, co-workers have raised the specter of personal discomfort and fear as to how a transgender person could pose a threat to the safety of other bathroom users.

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 while unclear about the spirit. In response, OSHA officials have advised employers to invoke obedience to the directives of government: They 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 birth identify, rather than face possible unfair treatment, retaliation, and bullying. While the law has no power over stupidity, there must be recourse when any employee is the victim of discrimination, retaliation, and/or bullying behavior. If you face any or all of these adverse work conditions, whether imposed by management or co-workers, you should promptly contact an employment law attorney for workers. At Hanan M. Isaacs, P.C., we offer compassionate counsel and tough advocacy to all New Jersey residents. Call 609-683-7400 to schedule a near-term and reduced fee initial consultation. You will be glad you did.