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for the Dallas Cowboys Cheerleaders, the Chicago Bulls, the New York City Ballet company, or for jockeys hired by thoroughbred owners to race them at the Kentucky Derby. In all of these cases, there are height, size, and other look requirements for employment that are justified by the particular demands and aesthetics of the position. She was found to be qualified for the job but her dress was clearly in conflict with Abercrombie & Fitch’s look policy. Yet, the job applicant knowingly sought employment at this retailer. According to the law, should a special accommodation be required due to a religious practice, then Title VII dictates that the look requirements give way to the religious requirement in order not to be considered an act of religious discrimination. The EEOC prevailed in the District Court, but this judgment was reversed by the Tenth Circuit on the ground that failureto-accommodate liability only attaches when a job candidate provides the potential employer with knowledge of the need for an accommodation due to religious practice. Once it reached the Supreme Court, the decision was made in favor of the job candidate. According to Justice Scalia, Title VII does not demand mere neutrality with regard to religious practices—that they be treated no worse than other practices.

Rather, it gives them favored treatment, affirmatively obligating employers not “to fail or refuse to hire or discharge any individual . . . because of such individual’s” “religious observance and practice.” An employer is surely entitled to have, for example, a no headwear policy as an ordinary matter. But when an applicant requires an accommodation as an “aspec[t] of religious . . . practice,” it is no response that the subsequent “fail[ure] . . . to hire” was due to an otherwise-neutral policy.

Title VII requires otherwise-neutral policies to give way to the need for an accommodation. The only dissenting opinion was that of Justice Thomas who wrote: Mere application of a neutral policy cannot constitute “intentional discrimination.”...I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.”

Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf... In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious