Healthism in Tort Law

Abstract This article considers ways that torts decisions and doctrine may operate discriminatorily against the unhealthy. The discussion draws from one chapter of my recently published book, Healthism: Health Status Discrimination and the Law, specifically, the chapter on “Healthism in Private Law.” Healthism examines, across contexts, instances of discrimination based on health status, suggesting that in at least some circumstances, treating people differently because of their health status or health habits is normatively wrong and, thus, “healthist.” We discuss many examples in the book, but our ultimate goal is to introduce the term into the public lexicon and attune readers to additional examples, which, we maintain, abound: Consider non-smoking policies in public housing; airlines or movie theaters charging obese passengers for two seats; employers refusing to hire based on out-of-work health habits and conditions, including tobacco use and obesity; or a physician refusing to treat a patient with multiple conditions and a history of noncompliance. Each of these scenarios carries a potential for healthism.