Scholars have long cautioned against focusing too closely on individual bad actors in antidiscrimination law without sufficient attention to how organizations discriminate. This Article reveals why it is equally dangerous to focus too closely on individuals at the other end: on specific victims and their psychological harms. The Article exposes a turn in antidiscrimination law over the past several decades toward measuring individual harm in determining whether discrimination occurred. Judges began to see and emphasize individual, psychological harm as a principal discrimination harm and at the same time to raise concerns about claims for mere trifles or personal offense, fashioning new doctrinal rules under which an individual’s harm must be measured not just in determining a person’s remedies but in determining whether discrimination occurred at all. This turn has gone unnoticed in legal scholarship and has been implicitly embraced by progressives and conservatives alike. Yet it is deeply problematic. The Article reveals why—and shows how a seemingly narrow recent decision by the Supreme Court involving Title VII of the Civil Rights Act can be understood to upend it. Taking on recently percolating debates in employment discrimination law, including harassment as discrimination, challenges to DEI measures, and religious belief accommodation demands, the Article illustrates a future for antidiscrimination law in which institutional action and normative questions about what amounts to discrimination and why are returned front and center rather than being buried behind measurements of individual harm.
