OSHA Issues Transgender Guidance

The Occupational Health and Safety Administration (OSHA) recently released updated guidelines specifically addressing the issue of transgender workers and restroom facilities. OSHA guidelines direct employers to:

• Allow transgender workers to use restroom facilities that are designed for the gender the worker identifies with;
• Refrain from asking transgender workers for medical or legal documentation supporting their gender identity; and
• Ensure transgender workers are able to use a restroom facility that they are comfortable using to avoid physical illnesses and conditions that can come from failing to use a restroom when needed.

A recent study by the University of California-Los Angeles estimated that approximately 700,000 people in the United States are considered to be transgender and identify with a gender different from the that with which they were born.

Although the OSHA guidelines are not law, employers are encouraged to remain in compliance with them to avoid potential lawsuits. OSHA’s guidelines specifically mention that failing to provide a transgender worker with an appropriate restroom facility can result in a federal sexual discrimination lawsuit. Similarly, transgender workers who are not provided with appropriate restroom facilities which they feel comfortable using may be eligible to collect compensation through workers' compensation or third-party lawsuits if the worker suffers an illness or disorder as a result.

There is another potential pitfall for employers as well: workplace harassment. Employers should make efforts to educate their employees about transgender individuals in the workplace. As the public’s reaction to Caitlyn Jenner’s “reveal” illustrates, while some people are very open and supportive, others are less enthusiastic to embrace transgender individuals. Animosity toward a transgender worker can lead to a variety of inappropriate and hurtful behavior, including:

• Teasing and verbal harassment;
• Blocking access for the transgender to what other workers perceive is the “wrong” restroom facility;
• Sexual harassment and assault; and/or
• Workplace violence.

Not only should the transgender worker’s employer educate, monitor, and supervise his or her workers, all employers throughout California (and, indeed, the nation) should take the opportunity to educate their workers about transgender issues and implement policies designed to protect transgender people in the workplace. An employer whose workers harass a transgender employee of a contractor or other company may face a civil, third-party workplace injury lawsuit. This, in turn, can result in monetary damages being awarded to the harmed transgender as well as significant unwanted public attention.

Transgender workers are entitled to the same respect and protections as any other worker on a jobsite, regardless of how other workers may personally feel about the transgender person. The same workers’ compensation laws that protect other employees, and the same civil laws available to compensate other employees for workplace injuries committed by third parties, are available to transgender workers as well.

If you have been injured by a third-party – a worker for a company different than your own – you may be entitled to bring a California third-party workplace injury case to recover compensation for your injuries. This is true regardless of whether you consider yourself transgender or not. Contact the San Jose workplace injury attorneys at Corsiglia, McMahon & Allard, L.L.P. for more information about your rights.