Journal of Tort Law
Founded by Coleman, Jules
Editor-in-Chief: Robinette, Christopher
Editorial Board: Geistfeld, Mark A / Goldberg, John / Perry, Ronen / Sharkey, Catherine M. / Witt, John / Zipursky, Benjamin
CiteScore 2018: 0.50
SCImago Journal Rank (SJR) 2018: 0.415
Source Normalized Impact per Paper (SNIP) 2018: 2.042
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.
Keywords: health law; healthism, torts; insurance, illness; medical condition; health status; discrimination, healthist; private conduct; statutory caps; medical malpractice; reasonably prudent person; negligence, reasonable care; ageism; obesity; unhealthy; contagious diseases; substance abuse
Elizabeth Weeks Associate Dean for Faculty Development and J. Alton Hosch Professor of Law, University of Georgia School of Law.