William & Mary Journal of Race, Gender, and Social Justice


One of America’s largest workforces, comprised of 1.5 million incarcerated workers, remains unprotected by employment discrimination statutes and vulnerable to abuse from a system designed to exploit their labor. This Note highlights the effects of the lack of protection against employment discrimination for incarcerated workers. This Note will analyze the circuit split regarding the application of employment discrimination statutes to prisoners based on varying understandings of the term “employee” and explain why both approaches fail incarcerated workers. Although one approach bars suit from incarcerated employees altogether, the other only allows suit when the incarcerated individual is working in an “optional” job opportunity. This Note will demonstrate that the distinction between forced and optional labor made by the circuit split is untenable today. Further, regardless of what test determines “employee” status, this Note proposes courts should find incarcerated workers to be employees and thus covered under employment discrimination statutes. All workers deserve to be, and should be, protected by the courts from discrimination in the workplace regardless of their incarceration status. To recognize the employee status of incarcerated workers would be to fulfill the purpose of the statutes by protecting vulnerable workers and creating a safer work environment.