In a Q&A with DiversityInc, former Equal Employment Opportunity Commission (EEOC) Chair Gilbert F. Casellas, now vice president of corporate responsibility at Dell, tells you about the gray areas of religious-discrimination law and why diversity training can help you avoid costly lawsuits.

Click here to listen to the interview with Casellas or read the complete transcript below. Download DiversityInc's Religion in the Workplace webinar and read the Nov./Dec. 2007 issue of DiversityInc magazine to learn about effectively managing religion at work.

(See also: Religion in the Workplace: Muslims, Gays & Fundamentalists)

DIVERSITYINC: What are the key trends regarding religious discrimination at work?

GILBERT CASELLAS: One of the concerns relates to personal appearance and religious discrimination. Many companies have an appearance policy, a dress code, personal care, hair trimmed or whatever, so with regard to religious discrimination, the typical ones are head dress, whether you're Jewish, whether you're Sikh, those kinds of questions and accommodating that in a particular workplace would be an issue. Beards, for example--there was a recent case involving a Rastafarian and his hair. This issue more and more has to do with corporate appearance policies.

The second one has to do with workplace harassment and proselytizing, so if we talk about an area that continues to increase in concern, given that people are a little more open about their religion given the greater diversity in the workplace--these [issues] tend to be a little more understood, that is where an individual's religious obligations in terms of attending services or praying can conflict with what the company's needs are.

Those tend to be very fact-specific, so it's hard to answer every possible scenario.

DIVERSITYINC: What specific issues arise around LGBT employees?

CASELLAS: There have been situations where an employee has claimed that his company's support for LGBT employees conflicts with his religious view. Where the line was drawn in one of those cases is you can have that belief if that means you decline to attend a celebration that was in connection with an LGBT event--that was fine. In this case, this individual refused in addition to that to adhere to a corporate policy that said, "We value diversity and diversity includes LGBTs."

What really took it over the line is in a situation where an employee because of his or her religious beliefs defaces or takes down company literature, posters, celebrating LGBT event or just the very presence of LGBT people in the workplace.

DIVERSITYINC: What should companies do in that case?

CASELLAS: You try your best to accommodate both views, so if this individual says, "I have a strong religious conviction against LGBT individuals," the question is well, "Well, does that mean you won't work next to somebody like that?" because that can't be accommodated. What you want to do as an employer is try to accommodate both groups in this situation. So …I think that if an individual says, "I can't work next to blankety-blank person for whatever reason," whether it's because they're lesbian or gay or African American or female, that person probably shouldn't be working in your workplace.

To the extent the employer has policies that are neutral, that are applied to everyone, and someone just refuses to adhere to that policy, it's not unlike any other policy in terms of "You gotta be at work on time," "Keep your area clean" or whatever the policies are. Some people may challenge those policies and that's where these issues come up. In that situation I gave you, the employer would probably be safe in adhering to its policy that says, "We value all individuals in the workplace, including those who are LGBT."

DIVERSITYINC: What are some of the gray areas of religion law?

CASELLAS: The challenge here is that most of the religion cases are gray areas--the ones that end up in court are the ones that tend to be highly difficult and fact-specific. For example, an individual who wears a religious symbol--a crucifix, Star of David, any other kind of religious symbol--does that constitute proselyzting? What about if someone says, "In my religion, there are tattoos"? The question is how prominent those tattoos are, how if at all the employer can accommodate the employee's religious expression without undue burden on itself as an employer.  

Another situation is an individual who is evangelical Christian or a very devout Catholic who does not believe in abortion. The employee comes to work wearing a lapel pin that has a very graphic photograph of an aborted fetus. She sincerely believes that abortion is morally wrong and that she is required by her religious belief and her faith to display this as part of her expression. In that situation, other employees were shocked and offended by that lapel pin, productivity was affected, people didn't want to see her, associate with her because they were confronted with this very graphic image. In that situation, the employer could justifiably say that you crossed the line because … "I can accommodate you if that's what you believe but I can't allow you to display this to the detriment of my business. There's just no way to accommodate your concern."

Whereas in other situations, like for example a Sikh, who wears a turban, or Muslim bus drivers who wear head scarves, the question is how you can accommodate that. One way to accommodate that is in the case of, if you look at the airlines, for example, the airlines have been able to accommodate that so that the head scarves conform to the uniform in terms of color and design, perhaps even a logo.  

DIVERSITYINC: What is the most difficult area of religion law?  

CASELLAS: The most difficult area--one that employers need to avoid--is trying to make a determination on what constitutes a religion. Someone will come in and say, "I belong to the Church of 21st Century Diversity," so if it's not a recognized religious order or sect, employers have to be careful because the way religion is defined under the law for EEOC purposes is simply a sincerely held religious, moral or ethical belief. I'll give you an example. This was an actual EEOC case during my term. This happened in Orange County, Calif. As part of a promotional activity, bus drivers were told to pass out coupons for free hamburgers. One driver refused, saying that doing so would conflict with his vegetarian beliefs.

He said, "Look, I am a vegetarian, but I am a vegetarian because of a moral belief, so during this promotion I don't really want to hand out coupons for burgers, so can you put me on a desk job, can I put the coupons in a basket and customers can pick it up?" and the transit authority didn't accommodate him and in fact fired him for insubordination. He filed a complaint with EEOC. EEOC found in his favor and it was settled out of court for about $50,000.

There are other cases where an employee goes to work at a place that's a "Christian-run business," and the owners are evangelical Christians and they believe that they have to proselytize. Well, they have an obligation to not cross the line when it comes to that employee. Similarly, an employee was working at a place and they had this new-wave mind-body-energy belief, the question is: Is that a religion or is it just more of a lifestyle?

That's when you get into these questions. What an employer should try to avoid is deciding whether this is a religion or not. If you conclude "That's not a real religion" and therefore "I don't have to accommodate you," you may find that someone else decides to the contrary, that this does constitute a "sincerely held religious moral or ethical belief," as opposed to simply trying to accommodate an individual's strongly held belief.

DIVERSITYINC: What are some of the major pitfalls to avoid?

CASELLAS: It's a tough area to get a handle on. The best example of how ridiculous some of these workplace situations are is Sikhs are not Muslim, yet you see harassment cases where Sikhs or Asian Indians are called all kinds of names and harassed because they're claimed to be "Arab terrorists," and that just shows the ignorance on the part of their coworkers. That harassment is really based on a complete lack of knowledge or understanding about either national origin or religion. 

First and foremost, employers need to assure themselves that their training programs include religion, and that's No. 1--that when they provide training on the traditional areas of discrimination, they include religion.

No. 2: Apply the same legal standards on sex- and race-discrimination cases as you do to religion cases. Religious-harassment cases need to be taken seriously as well because the liabilities are the same. Employers have to make sure that they refresh their training and when they have training, they talk about religious harassment because a friendly conversation about religious topics can easily cross the line.

If a manager or supervisor talks about his or her weekend at church as part of general conversation about how you spent your weekend, it's one thing, but if that person then begins to request his or her subordinates to attend service or to read passages from the Bible, there's a line you cross there that becomes proselytizing. Given the imbalance of power, especially when managers are interacting with subordinates, you could have a religious-harassment claim on your hands as an employer. 

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