Affirming Personhood: Extending Title VII Protections to Prisoners in State-Operated Prison Industries

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This Note examines the application of Title VII protections to prisoners in the historical context of the Thirteenth Amendment. First, I outline the transition from traditional racial chattel slavery into our modern prison industrial complex through the Thirteenth Amendment. Next, I discuss the purpose of Title VII and review the different standards used by the circuit courts to determine whether the statute applies to prisoners. Finally, I argue that prison laborers should be treated as employees in all circumstances when applying Title VII to prisoners.


Title VII of the Civil Rights Act of 1964 protects employees from employer discrimination on the basis of race, color, national origin, sex, and religion.1 Title VII also protects employees from sexual harassment from employers.2 It is uncontested that there is an important public policy in protecting employees from sexual harassment and discrimination.3 Despite agreement on this policy, courts are divided on whether Title VII employment protections should apply to prisoners and their work relationships in state-operated prison industries.4

This split creates a serious problem for prisoners where those protections are denied. There are 2.3 million people incarcerated in federal and state prisons, jails, and detention centers.5 In 2014, sixty-one percent of incarcerated adults had a job in prison.6 In some cases, prisoners need money because state regulations require them to cover the costs of basic living items while they are in prison.7 A prisoner’s ability to earn money and pay for their expenses is at risk when they are subject to discrimination. Should a person be excluded from basic protections from discrimination and harassment by their employers solely because they have been incarcerated?

Prisoners’ rights are threatened in large part because of the Thirteenth Amendment to the U.S. Constitution, which determines the conditions under which slavery is permitted to exist in the United States.8 Because prisoners have been convicted of crimes, the government has the explicit constitutional authority to treat prisoners as slaves. This is important to keep in mind when considering the history of enslavement in the U.S. and the implications of denying Title VII protections to prisoners. The Thirteenth Amendment facilitated the transition from racialized chattel slavery into our modern prison industrial complex. Before the Thirteenth Amendment, slave masters were not held accountable for the sexual abuse of their slaves because the slaves were the property of the master.9 Through this Note I hope to show that today, when prisoners are denied Title VII protections, for example in a prison employer’s sexual harassment case, we are reinforcing this same logic.

Part I of this Note analyzes the transition from traditional racial chattel slavery into our modern prison industrial complex through the Thirteenth Amendment. It should be noted that there are two conflicting accounts regarding the origins of prisons in the United States: (1) that prisons have always existed alongside slavery and (2) that prisons began after the ratification of the Thirteenth Amendment. I will provide context for both accounts for full transparency. I shall also address the current circumstances for prisoners and prison workers in the modern and contemporary era.

Part II outlines the original purpose of Title VII and reviews the different standards used by the circuit courts to determine whether or not prisoners can bring Title VII claims. I will also focus on select cases where Title VII protections are denied.

Part III argues that courts should consider prison laborers as employees when applying Title VII to prisoners. In support of the argument, Part III analyzes weaknesses in legal arguments used by courts to deny Title VII protections to inmate workers. I shall discuss the practical consequences of extending Title VII protections to prisoners. Most importantly, I will highlight the transition from the racial chattel slavery to our modern prison system and discuss the frightening parallels between the two systems in situations where Title VII protections are not granted to inmate workers.

I. From Chattel Slavery to Our Modern Prison Industrial Complex

A. Slaves as Property

Racial chattel slavery is a system of slavery based on race that treats slaves as the personal property of the master.10 Under this system, the racial group deemed to be slaves can be bought and sold by others outside of the racial group and treated as a form of property. 11 This conception of slavery was not the predominant view in the earliest British colonies of what would become the United States. Virginia was established as the first British mainland colony in 1619 and became the first colony to establish slavery.12 While most of the first Africans in the colony were slaves, some were also indentured servants and others were free individuals.13 There were no formal rules or policies requiring Africans to be slaves or defining slaves as property.14 The laws addressing Africans passed by the early colonial legislature did not treat African slaves as property.15 For example, a law was passed allowing African women to be treated the same as European and African men for Tithes―a tax system levied specifically for people (not property) who contributed to the economy.16 This law demonstrates that at the time Africans weren’t considered “property.” Instead, they were closer to second-class members of a community.17

In 1659, the first law in Virginia was passed recognizing Africans as slaves.18 This law was the first official act treating the enslaved Africans as commodities instead of people.19 Many Africans began to rebel and fight for their freedom and personhood. White indentured servants and other poor individuals who empathized with the Africans began to help them escape and secure their freedom.20 To discourage interracial cooperation and rebellious challenges to the regime, the legislature passed laws requiring European indentured servants to serve extra time for aiding slaves in their escape.21 These laws helped to further the concept of African slaves as property by incentivizing potential sympathizers to reject their personhood. Coupled with the changes in the law, the concept of African slaves as property slowly became the prevailing view.

Treating enslaved persons as property has historically produced disturbing results. Laws that traditionally regulated interactions between people became wholly inapplicable to enslaved persons. In 1669, the Virginia legislature passed a law stating that masters who killed their slaves in the act of punishing them could not be held responsible for murder.22 This law was justified on the grounds that “it cannot be presumed that prepensed malice . . . should induce any man to destroy his [own] estate.”23 In the eyes of the Virginia legislature, the killing of a slave could not be murder because the master was essentially destroying his own property.

The experience of enslaved African women most vividly depicts the dehumanizing logic of treating slaves as property. Under English common law, the mixed-race child of a slave master and a slave woman would be born free.24 The Virginia legislature abandoned the English common law and adopted the Roman law rule of partus sequitur ventrem, a legal rule applied to livestock and domestic animals which made the offspring of a domestic animal the property of the animal’s owner.25 The Virginia legislature formally adopted this view in 1662 and passed a law making the children of slave women the property of the slave master.26 This law stripped virtually all protections from sexual abuse for enslaved women. Masters had the right to rape and sexually abuse slave women because the women were the property of the masters. The only theorical legal claim that may have existed was a claim for trespass by the master if the slave was raped by a non-slave owner, but there is no evidence of any such suit having been filed.27 With the passage of this law, slave women and children lost all legal personhood and became property.

While these laws and many others have advanced the idea of slaves as property, the Supreme Court’s decision in Dred Scott v. Sandford28 is by far the most important legal opinion to address the topic. The ruling in Dred Scott is considered by many to be the worst decision in the history of the Supreme Court.29 Dred Scott was a slave who had been taken from Missouri, a slave state, into Illinois and the Wisconsin Territory, where slavery was prohibited by the Missouri Compromise of 1820.30 Upon return to Missouri, Scott sued for his freedom on the grounds that he became free once his masters took him into free territories.31 After several trials, the Supreme Court dismissed the case holding “Scott and his family upon their return were not free, but were . . . the property of the defendant; and that the Circuit Court of the United States had no jurisdiction, when . . .the plaintiff was a slave, and not a citizen.”32 This ruling declared the Missouri Compromise and laws designed by states and territories to free slaves unconstitutional because doing so would deprived slave masters of their property.33

Historically, it is clear in the United States that slaves are property. The physical, mental, and sexual abuse of slaves was acceptable because in the eyes of the slave master, the abuse was not happening to a person, but to a mere object. This is the morally depraved framework within which the United States has operated in the context of slavery―a framework that has evolved and is still present in our modern prison industrial complex.

B. From Slaves to Prisoners

After the Civil War ended in 1865, the Thirteenth Amendment to the United States Constitution was ratified. The Thirteenth Amendment states: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”34 Reading the plain language of the Constitution makes clear that the Exception Clause in the Thirteenth Amendment explicitly allows for slavery to exist where a person has been convicted of a crime. Through this clause, the peculiar institution made an all but seamless transition into our modern prison industrial complex. To illustrate this transition, I will describe the state of prisons before and after the Thirteenth Amendment was ratified.

1. Prisons Before the Thirteenth Amendment

In the seventeenth century, jails in colonial North America generally served as pre-sentencing detention facilities for criminal defendants and those in debt.35 The most common forms of punishment at the time were fines, whipping, and being placed in the stocks.36 The jails were not centers designed for long term incarceration. 37 Even where a person was sentenced to a colonial workhouse, the sentences ranged from a single day to three months on rare occasions.38 Jails and prisons were of such a fundamentally different nature that, for practical purposes, they can almost be considered wholly different institutions.

A shift from jails to penitentiaries occurred in the eighteenth century. After the Revolutionary War, crime rates rose due to post-war population increase and the geographic displacement of families.39 Colonial governments struggled to deal with the rising crime rates as past methods of punishment became either impractical or ineffective. Fines couldn’t be paid by the poorest offenders,40 banishment merely redistributed crime across the community,41 and public punishments such as whipping and stocks became less common as crowds began to sympathize with those who were punished.42 Colonial governments ultimately choose to move toward incarceration and hard labor as the sole punishment for crime.43 Given past methods of punishment, incarceration and hard labor came off as more humane options that could be adjusted according to the crimes committed.44 These changes led to the creation of the first penitentiaries in the 1820s.45 By the 1830s, the penitentiary had become a well-established institution in the United States criminal justice system.46 These institutions would become the foundation for our modern prison system.

Many were opposed to establishing penitentiaries in the South.47 Much of the Southern opposition related to its parallels with slavery. Because no white person wanted a similar experience to a Black slave, the parallels between the two systems made the creation of a white criminal underclass undesirable.48 Ultimately, legislators choose to build penitentiaries in the Southern states in the period before the start of the Civil War.49 Those who supported the penitentiary viewed the institution as an opportunity to discontinue past abusive punishment methods in the criminal justice system and to help rehabilitate and reintegrate criminals into society.50 Slaves did not fit into this picture of rehabilitation. At this time, slave-owners used jails to store their human property and to punish slaves for disciplinary reasons.51

The perspective on rehabilitation was likely influenced by prison demographics. Most prisoners in the South during this period were foreign born white males.52 In the rural South, most criminal defendants were whites of all socio-economic classes.53 White Southerners thus likely cared more about rehabilitating and reintegrating white prisoners into society than Black prisoners. The crimes committed also likely influenced the goal of rehabilitation. Violent crimes were prevalent in the South and white males were the primary offenders.54 Additionally, property crimes, such as theft and burglary, accounted for half of the South’s prison population despite less than twenty percent of criminals committing those crimes.55 Rehabilitating criminals who committed crimes was in the interest of the Southerners who supported penitentiaries.

This history of jails and penitentiaries in the United States demonstrates the foundation for our modern prison system. Prior to the Thirteenth Amendment, these institutions were used primarily used to incarcerate and rehabilitate criminals through hard labor. Enslaved persons generally had no relationship with the rehabilitation aspect of penitentiaries as they were the property of their owners.

2. Prisons After Thirteenth Amendment

The nature of prison incarceration fundamentally changed in the aftermath of the Civil War. The southern economy heavily depended on slave labor to harvest profitable crops.56 With the abolition of slavery, the newly freed Blacks worked less as many sought to spend more time with their families.57 With the loss of their human property and a large part of the population actively seeking to work less, the South was in a poor economic position.

To remedy the situation, southern legislatures sought to use the Exception Clause of the newly ratified Thirteenth Amendment. Southern states began to pass Black Codes, criminal statutes targeted towards the newly freed Blacks, to create a form of quasi-slavery and negate the effects of the war.58 The Black Codes restricted the rights of Blacks to rent property and move freely in public spaces through vagrancy laws.59 Mississippi’s Black Codes served as the model for the laws passed by other Southern states.60 Under these laws, the newly freed Blacks were targeted, arrested, and legally re-enslaved under the Thirteenth Amendment. In Ruffin v. Commonwealth,61 the Virginia Supreme Court went as far as to explicitly declare that a prisoner was a “slave of the state.”62 Once incarcerated, prisons began to implement a practice known as “convict leasing.”63 This was a system where prisons would lease prisoners to corporations and plantation owners. The purpose of convict leasing was to maximize “financial profit to the lessees who exploited the labor of the prisoners to the fullest, and to the government which sold the convicts to the lessees.”64 Black males due to “vigorous and selective enforcement of laws and discriminatory sentencing,” made up the vast majority of the convicts leased.65

The purpose of discussing this history is to aid in understanding the current United States prison system as a continuation and evolved form of the slavery that existed prior to the Civil War. Understanding this history makes it easier to see the parallels between the treatment of slaves as property prior to the Civil War and the denial of Title VII protection for prisoners today.

C. From Prisoners to Prison Laborers

  1. Twentieth Century Prison Labor

The use of prison labor began to decline in the early part of the 20th century for several reasons. Labor unions opposed the use of prison labor because the availability of cheap inmate labor allegedly led to a perceived deflation of union workers’ wages.66 Congress responded to these concerns by passing the Hawes-Cooper Act in 1929, which imposed strict regulations and limitations on prison labor.67 Additionally, public support for the conditions surrounding prison labor began to decrease.68 For example, many states required the prisoners to work on chain gangs, a practice where prisoners were chained together by their ankle and forced to work in a cruel and inhumane manner.69 Historically, this form of prison labor was primarily reserved for Black inmates after the Thirteenth Amendment was passed. As time passed and white inmate were sentenced to chain gangs, public support for the practice dwindled and was eventually abolished in the mid-1900s.70

Prison labor became more heavily utilized again in the 1980s and has continued to grow for several reasons.71 First, the prison population grew at an unprecedented rate in the 1970s and 1980s, which led to fears regarding prison overpopulation.72 As the cost of prisons rose, people saw the use of inmate labor as a way to manage the costs of the facilities.73 As a result, private prisons became more prevalent and the Federal Prison Industries, Inc.’s labor program (“UNICOR”) expanded its operations to become one of the main prison employers today.74 Additionally, public support for prison labor resurged. Similar to arguments made prior to the end of the Civil War, proponents argued that prison labor could serve a rehabilitative purpose and benefit the prisoners by combating idleness and “tak[ing] responsibility for their actions.”75 As a result, inmate labor is common across the country and has become a multi-billion-dollar industry.76

2. Present Realities for Prisoners

In an article published in the Columbia Law Review, author Jackson Taylor Kirklin described the way in which modern prison labor is identical to non-prison labor:

[T]oday’s prison work assignments commonly resemble traditional jobs in many respects. Inmates particularly those who work for private corporations operating inside the prison may have long-term jobs with regular shift schedules. Inmates work under the authority of supervisors, who are either prison staff or civilian employees of third-party corporations authorized to operate out of the corrections facility. Most importantly, the overwhelming majority of inmates receive compensation for their work. Payment in money is the common form of compensation, although inmates may also receive nonmonetary compensation (such as credits toward a reduction in sentence length) for their labor.77

While the purpose of this Note is not to argue for higher wages for prisoners, it is important to discuss prisoner compensation to capture the realities for the inmates. In 2017, the average prisoner made between $0.14 to $0.63 per hour for regular, “non-industry” jobs and between $0.33 to $1.41 per hour for jobs in state-owned businesses.78 This does not include any deductions which often leave incarcerated workers with less than half of their gross pay.79 Prisons are actually paying prisoners less today than they were almost twenty years ago.80 In fact, some states, including Florida, Alabama, Arkansas, Georgia, and Texas don’t pay prisoners at all for regular prison jobs.81

In many prisons across the country, prisoners need the money earned from work to support their families at home or to afford basic necessities in prison. In 2013, a Tennessee jail in Anderson County announced that it would soon be charging prisoners for time done behind bars.82 According to one report, prisoners will need to pay taxpayers $9.15 for each pair of pants issued during their stay, $6.26 for each blanket, $1.15 for each towel, and $0.29 cents for a roll of toilet paper.83 In Tennessee, prisoners only make anywhere from $0.17 to $0.75 per hour for regular prison jobs.84 Often, prisoners need to work hours or even days to afford basic necessities.

The recent experiences of women in Arizona prisons, where base pay is $0.15 per hour, best highlights this reality.85 In 2017, the Arizona State Prison Complex-Perryville, which imprisons around 4,000 women, gave incarcerated women twelve free menstrual pads86 each month.87 Prisoners needed to ask officers if they needed more pads and were permitted to possess at most twenty-four at a time.88 Tampons were not provided and needed to be independently purchased.89 These provisions generally weren’t enough for every prisoner.90 In the best case scenarios, women had to work long hours to be able to cover the cost of their menstruation.91 More often, however, women had to go through menstruation with insufficient resources.92 The Arizona Department of Corrections later changed the policy, providing free pads and tampons to all prisoners.93

These examples show that prisoners often use the money from work to pay for many basic necessities. Contrary to the historical view of prisoners as property, prisoners are real people with legitimate needs. Their ability to work and earn a living can be the difference between having a blanket to sleep at night or having enough pads during menstruation. Because of this reality, it is imperative to ensure that a prisoner’s ability to acquire basic necessities is not deterred by workplace discrimination.

II. Title VII and Its Application to Prisoners

A. Purpose of Title VII

Title VII of the Civil Rights Act of 1964 is the most comprehensive and influential antidiscrimination law in American history.94 There are important public policy reasons supporting Title VII. In McDonnell Douglas Corp. v. Green,95 the court explained the Title VII was created to ensure “the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.”96 In the context of sex discrimination, the Supreme Court in Meritor Sav. Bank, F.S.B. v. Vinson,97 acknowledged that sexual harassment which creates a hostile or offensive environment for members of one sex is every bit the arbitrary barrier to sexual equality at the workplace that racial harassment is to racial equality. Surely, a requirement that a man or woman run a gauntlet of sexual abuse in return for the privilege of being allowed to work and make a living can be as demeaning and disconcerting as the harshest of racial epithets.98

Thus, it is clear from the court that the purpose of Title VII is to ensure that people are not subjected to arbitrary impermissible barriers denying their opportunities for advancement in employment and that people aren’t subjected to hostile work environments.

B. Title VII’s Application to Prisoners

A primary issue in determining coverage under Title VII is whether an individual is a qualified “employee.” The Civil Rights Act of 1964 only grants antidiscrimination protections to employees, which the Act defines as “individual[s] employed by an employer.”99 Courts generally interpret “employee” broadly, recognizing that “a strict and narrow interpretation of the word ‘employee’ . . . would undercut the obvious remedial purposes of Title VII.”100

In a recent article published in the Harvard Journal of Law & Gender, J.S. Welsh summarized the split between federal courts and agencies regarding whether prisoners are considered employees under Title VII:

The Sixth and Ninth Circuits permit Title VII claims by inmate workers under specific economic circumstances, while the Tenth Circuit prohibits Title VII suits by inmates altogether. The Sixth, Seventh, and Eighth Circuits have conflicting case law, and the First and Second Circuits have not addressed the question. The EEOC has taken a strong position in opposition to prisoner workers: “A prison inmate who, while serving a sentence, is required to work by or who does work for the prison . . . is not an employee within the meaning of the Act.101

Several tests have been used by the courts to determine whether a plaintiff is an employee under Title VII.102 Under the “common law agency” test, courts examine the purported employee’s relationship with the employer in light of the “traditional agency principles which rely heavily on the level of control that a company exercises over the manner and means by which a worker performs her job.103 While this is the most frequently used test, courts have not applied the common law agency test to prisoners in Title VII cases.104 Instead courts have relied on the “primary purpose” test or the “economic realities” test to determine whether prisoners have an employment relationship for the purposes of Title VII.105

Under the primary purpose test, “courts examine the statutory purpose of Title VII to determine whether the individuals are employees.”106 In Williams v. Meese,107 the Tenth Circuit used the primary purpose test to bar prisoners from being “employees” under Title VII. In this case, a prisoner alleged that he was denied job opportunities solely on the basis of race and age.108 The court held that the prisoner was not an employee protected under Title VII.109 The court reasoned that the “primary purpose” of the inmate’s relationship with the prison facility was “incarceration, not employment,” meaning that that the plaintiff did not have an employment relationship.110 In fact, because a prisoner’s relationship with their prison work supervisor “arises out of his status as an inmate, not an employee,” the court expressed the view that no genuine employment relationship can exist in a prison context.111

Some courts have also used the primary purpose test to prevent prisoners from bringing Title VII suits in sexual harassment cases. In McCaslin v. Cornhusker State Industries,112 the plaintiff, a female prisoner, was a computer operator with “satisfactory or better” and “received raises in salary until she was earning the top-pay rate.”113 She brought suit under Title VII alleging that fellow inmate work supervisors were sexually harassing and assaulting her at work.114 In denying the prisoners right to bring suit, the district court judge elaborated on their use of the primary purpose test to deny the claim.115 According to the judge, “the relationship between prisoner and prison is not voluntary; it arises out of the prisoner’s conviction for a crime and his or her sentencing to a period of incarceration.”116 The relationship “is not one of employer-employee. Instead, it is one of jailor-jailed.”117 Thus, in the prison context, the primary purpose test has been used to deny prisoners the right to bring suit under Title VII.118

Under the “economic realities” test, courts use a fact-intensive analysis to examine whether “workers [are] employees ‘as a matter of economic reality.’”119 In Nationwide Mutual Insurance Co. v. Darden,120 the Supreme Court established the relevant factors used to determine employee status in the economic realities test:

[T]he skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party’s discretion over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment of the hired party.121

In Baker v. McNeil Island Corrections Center,122 the Ninth Circuit permitted a prisoner to bring a Title VII suit. In Baker, a man applied for a job but was denied the position because of his race.123 The circuit court agreed with the district court’s application of the economic realities test in determining that there was an employment relationship.124 The circuit court agreed that because of the high level of control that the prison wielded over Baker’s employment, the district court correctly ruled that the economic realities of Baker’s work assignment in the prison “strongly suggests . . . that the plaintiff was an employee under Title VII.”125

III. Prisoners Should be Protected by Title VII

A. Legal Analysis of Currently Applied Standard

By ordinary meaning and the plain language of the statute, prisoners should be considered employees under Title VII. Under Title VII, employees are defined as “individual[s] employed by an employer.”126 According to Merriam-Webster’s Dictionary, the definition of “employed” is “to provide with a job that pays wages or a salary.”127 Further, the definition of an “employer” is “a person or company that provides a job paying wages or a salary to one or more people.”128 Therefore, if a prison provides a prisoner with a job that pays wages or a salary, the prisoner becomes employed by the prison and the prison becomes an employer. Given the fact that forty-five out of fifty states pay prisoners to work on some level, it stands to reason that the vast majority of prisoners should be considered employees under Title VII.129

The common law agency standard is the most consistent with the purpose of Title VII. Under this standard, courts assess the employment relationship in light of “traditional agency principles which rely heavily on the level of control that a company exercises over the manner and means by which a worker performs her job.”130 Given the nature of incarceration, the prison would always exercise control over the manner and means by which a prisoner could perform their job.

While some courts have used the economic realities test to extend Title VII protections to prisoners, this raises conceptional issues. Traditionally, this test is used and applied to distinguish employees from independent contractors in the context of the Fair Labor Standards Act, an employment statute unrelated to discrimination in the workplace.131 To apply the economic realities test to prisoners in Title VII cases would suggest that the employment relationship between prisoners and prisons is similar to independent contractors, which is clearly not the case given the lack of freedom prisoners have in the execution of their duties and the level of control that prisons will by their nature always exercise over prisoners. Thus, even though the same result can be reached, it is inconsistent with the principles of employment law for courts to use this test to grant Title VII protections to prisoners.

Even if courts decline to apply the common law agency test, they should reevaluate their application of the primary purpose test. Generally, courts that don’t consider prisoners employees under Title VII contend that the primary purpose of the prisoner’s relationship is one of incarceration rather than employment.132 They argue that the prisoner’s ability to work arises from their incarceration and as such cannot be considered employees under Title VII.133 This reasoning is inconsistent. Courts using the primary purpose test are supposed to “examine the statutory purpose of [Title VII] to determine whether the individuals are employees.”134 If the statute is ambiguous, courts should examine possible interpretations against the “broader context” of Title VII’s objectives in order to ascertain the correct interpretation.135 The purpose of Title VII is clear from the plain language of the statute―to prevent discrimination in employment on the basis of protected characteristics. Title VII was created to ensure “the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.”136 This statutory purpose in no way prevents prisoners from exercising their rights under Title VII. The way courts have applied the primary purpose test is inconsistent with the statutory purpose of Title VII. Courts have used the prisoner’s status as an arbitrary barrier to prevent the prisoner from bringing an employment discrimination claim based on a protected characteristic. A proper application of the primary purpose standard would recognize that the broader context of Title VII’s objectives in preventing employment discrimination would allow for prisoners to qualify as employees.

B. Practical Justification for Prisoners

Treating prisoners as employees for the purposes of Title VII would provide many practical benefits for prisoners. First, it would permit prisoners to bring their employment discrimination claims to court. When courts deny prisoners the opportunity to bring claims under Title VII, they are denying prisoners the opportunity to be heard and invalidating what was likely a painful, dehumanizing experience. Allowing inmates to bring suit under Title VII would validate their experiences and provide an opportunity to advocate for their statutory rights in court.

Second, if a prisoner wins their claim, the remedies of Title VII could make the prisoner whole. Under Title VII, depending on the specific allegations and facts of a case, a prisoner may be entitled to injunctive relief, back pay, reinstatement or front pay, compensatory and punitive damages, and attorney’s fees and costs.137 As previously mentioned, prison can be expensive for prisoners, especially considering the fact that on average they make less than $1 per hour.138 When a prisoner is discriminated against in prison, their ability to provide for themselves is compromised. They may be prevented from obtaining a promotion and earning a higher salary or from earning a salary at all. Depending on the state, this could mean that a prisoner could lose their ability to afford basic necessities for their stay in prison. The statutory remedies of Title VII, such as back pay, reinstatement, and/or front pay, ensure that prisoners who are discriminated against can still provide for themselves if they were the victims of discrimination in ways other civil rights statutes simply cannot.139

Allowing prisoners to bring Title VII suits would likely have minimal unexpected or calamitous consequences for prisons. Permitting such suits would open prisons up to potential liability when a discrimination claim has been proven. This could mean that some prisons may be liable for statutory as well as punitive damages under Title VII. While this liability would be new for prisons, they would be no more liable than any other organization to which Title VII applies. At worst, it is entirely fair for prisons to be subject to potential liability for failure to provide a work environment free of discrimination and harassment for prisoners. Some may argue that exposing prisons to liability under Title VII would strain administrative resources or be too difficult for prisons to enforce. But if the administrative burden on a particular prison to ensure that prisoners aren’t subjected to discrimination and harassment in employment is too high, serious questions should be raised regarding whether such a facility should be entrusted with the rehabilitation of prisoners in the first place.

C. Denying Title VII Protections Creates (More) Troubling Parallels to Slavery

Denying Title VII protections to prisoners draws eerie parallels to slavery in a particularly disturbing manner. The best illustration of this parallel can be seen in prison employment sexual harassment cases.

In McCaslin, a federal judge used the primary purpose test to decline Title VII protections to a female prisoner who had been sexually harassed and assaulted at work by her supervisor solely because she was a prisoner.140 Because her relationship with the prison was “not one of employer-employee. Instead, it [was] one of jailor-jailed,” she was not entitled to protection from sexual harassment by her supervisor.141 The 1662 slave masters used virtually the same logic to justify their sexual abuse of enslaved women. The Virginia legislature specifically designed the statute to ensure that enslaved women’s relationship as the property of their masters excluded them from protection against rampant sexual abuse as their masters exploited their labor.142 As a result, enslaved women could not bring claims against their master for sexual harassment, sexual abuse, or rape solely because they were slaves.

Recalling the Thirteenth Amendment’s role in the transition from slavery into our modern prison system highlights a more troubling reality. The sexual abuse of enslaved women in 1662 went unpunished by slave masters because the laws did not grant protection to those women who had been subjected to slavery. Now, under the Thirteenth Amendment women are by definition constitutionally subjected to a system of slavery once convicted of a crime. And solely because women, like McCaslin, were subjected to this system of slavery, Title VII, a statute meant to protect workers from sexual harassment in the working place, is being interpreted in such a way that does not grant inmates protection.

This is not to say that courts intentionally deny Title VII protections in order to recreate these parallels. All of this is to highlight the fact that declining to extend Title VII protections to prisoners can effectively reproduce scenarios that mirror arguably the most shameful moments in America’s legal history.


The Thirteenth Amendment enabled the traditional system of racial chattel slavery to evolve into our modern prison industrial complex. When a person is convicted of a crime, they are subjected to a constitutionally allowed system of slavery that has historically allowed society to treat enslaved persons as property. But just like the slave of 1662, our modern prisoners are people and deserve to be treated with dignity. They deserve to be protected from discrimination in their employment. They deserve to pursue opportunities in their work without worry that their race will be a barrier to higher paying opportunities. They deserve to be able to hold others responsible when they are sexually harassed by their inmate supervisors. Considering prison workers employees for the purposes of Title VII is consistent with the purposes of the Act and treats prisoners as people, rather than property.


  1. 42 U.S.C. § 2000e (2018).

2. Meritor Sav. Bank, F.S.B. v. Vinson, 477 U.S. 57 (1986).

3. Alexander v. Gardner-Denver Co., 415 U.S. 36, 51 (1974) (“Title VII’s strictures are absolute and represent a congressional command that each employee be free from discriminatory practices.”).

4. Jackson Taylor Kirklin, Title VII Protections for Inmates: A Model Approach for Safeguarding Civil Rights in America’s Prisons, 111 Colum. L. Rev. 1048, 1051 (2011) (discussing the circuit splits in granting prisoners Title VII protections).

5. Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2020, Prison Policy Initiative (2020), [].

6. Highlights from the U.S. PIAAC Survey of Incarcerated Adults: Their Skills, Work Experience, Education, and Training, Program for the International Assessment of Adult Competencies 2014, U.S. Dep’t of Educ. Nat’l Ctr. for Educ. Statistics (Nov. 2016), 16/2016040.pdf [].

7. See infra part I.C.2.

8. U.S. Const. amend. XIII, § 1.

9. Paul Finkelman, The Legal Understanding of Slavery: From the Historical to the Contemporary 105–34 (Jean Allain, ed., 2012).

10. 1 Junius P. Rodriguez, Early Conquest, Colonialism, and the Origins of African Slavery, in Slavery in the Modern World 78 (Junius P. Rodriguez ed., 2011).

11. Id.

12. Finkelman, supra note 9, at 107.

13. Id.

14. William Waller Hening, Being A Collection of the Laws of Virginia from the Legislature in the Year 1619: Published Pursuant to an Act of the General Assembly of Virginia, Passed on the Fifth Day of February One Thousand Eight Hundred and Eight Volume I 440 (1823) [hereinafter Hening I]; see also, Finkelman, supra note 9, at 108–09.

15. Finkelman, supra note 9, at 108–09.

16. William Waller Hening, Being A Collection of the Laws of Virginia from the Legislature in the Year 1619: Published Pursuant to an Act of the General Assembly of Virginia, Passed on the Fifth Day of February One Thousand Eight Hundred and Eight Volume II 170 (1823) [hereinafter Hening II]; see also, Finkelman, supra note 9, at 108–09.

17. Finkelman, supra note 9, at 109.

18. Id.; Hening I, supra note 14, at 540.

19. Finkelman, supra note 9, at 109.

20. Id. at 109–10.

21. Id.; Hening II, supra note 16, at 116–17.

22. Hening II, supra note 16, at 270.

23. Id.

24. Finkelman, supra note 9, at 112.

25. Id.

26. Hening II, supra note 16, at 170.

27. Finkelman, supra note 9, at 111.

28. Dred Scott v. Sandford, 60 U.S. 393 (1857).

29. Bernard Schwartz, A Book of Legal Lists: The Best and Worst in American Law 70 (1997) (the Dred Scott decision “stands first in any list of the worst Supreme Court decisions—Chief Justice Hughes called it the Court’s greatest self-inflicted wound.”).

30. Dred Scott, 60 U.S. at 397, 453, 458–59.

31. Id. at 396.

32. Id. at 453.

33. Id. at 451–52.

34. U.S. Const. amend. XIII, § 1 (emphasis added).

35. Adam Hirsch, The Rise of The Penitentiary: Prisons and Punishment in Early America 7 (1992).

36. David J. Rothman, The Discovery of the Asylum: Social Order and Disorder in the New Republic 48–49 (Aldine Transaction rev. ed., 2011).

37. Scott Christianson, With Liberty for Some: 500 Years of Imprisonment in America 61 (1998).

38. Hirsch, supra note 35, at 8.

39. Id. at 39, 55.

40. Id. at 38.

41. Rothman, supra note 36, at 58.

42. Michael Meranze, Laboratories of Virtue: Punishment, Revolution, and Authority in Philadelphia, 1760–1834 36–38 (2d ed. 1996).

43. Hirsch, supra note 35, at 55–56.

44. Rothman, supra note 36, at 62.

45. Id. at 79.

46. Hirsch, supra note 35, at 68; See also Meranze, supra note 42, at 292.

47. Edward L. Ayers, Vengeance and Justice: Crime and Punishment in the 19th-Century American South 42 (1984).

48. Michael Stephen Hindus, Prison and Plantation: Crime, Justice, and Authority in Massachusetts and South Carolina, 1767–1878 242–44 (1980).

49. Ayers, supra note 47, at 34–35.

50. Id. at 42.

51. Id. at 102.

52. Id. at 61.

53. Id. at 116.

54. Id. at 100–02.

55. Id. at 75.

56. Pieter C. Emmer, The Price of Freedom, in The Meaning of Freedom: Economics, Politics and Culture After Slavery 29 (Frank McGlynn & Seymour Drescher eds., 1992).

57. Theodore Brantner Wilson,The Black Codes of the South 54–55 (1965).

58. Id. at 66.

59. Richard Wormser, The Rise and Fall of Jim Crow 8 (2003).

60. Gary Stewart, Black Codes and Broken Windows: The Legacy of Racial Hegemony in Anti-Gang Civil Injunctions, 107 Yale L.J. 2249, 2259–60 (1998).

61. 62 Va. 790, 796 (1871).

62. Id.

63. J. Thorsten Sellin, Slavery and the Penal System 146 (1976).

64. Id.

65. Leon F. Litwack, Trouble in Mind: Black Southerners in the Age of Jim Crow 271 (1998).

66. Kirklin, supra note 4, at 1054–55.

67. Id.

68. Emily S. Sanford, The Propriety and Constitutionality of Chain Gangs, 13 Ga. St. U. L. Rev. 1155, 1171 (1997).

69. Id. at 1155, 1166–67.

70. Id. at 1171.

71. Kirklin, supra note 4, at 1055.

72. Id.

73. Id. at 1055–56.

74. Id.

75. Id. at 1057.

76. Joel Dyer, The Perpetual Prisoner Machine: How America Profits from Crime 19 (2000).

77. Kirklin, supra note 4, at 1059-60.

78. Wendy Sawyer, How Much Do Incarcerated People Earn In Each State?, Prison Policy Initiative, (Apr. 10, 2017), [ YB2-ZYJX].

79. Id.

80. Id.

81. Id.

82. Salvador Jimeniz Muriguia, Food as a Mechanism of Control and Resistance in Jails and Prisons 19 (2018).

83. Id.

84. Sawyer, supra note 78.

85. Kaila White, Bill Would Give Free Pads, Tampons to Inmates, The Arizona Republic (Feb. 7, 2018, 6:00 AM), [ 963W-QZSE].

86. Referred to in this Note simply as “pads.”

87. Id.

88. Id.

89. Id.

90. Id. The average menstrual flow lasts two to seven days and happens every twenty-one to thirty-five days. Mayo Clinic Staff, Menstrual Cycle: What’s Normal, What’s Not, The Mayo Clinic: Healthy Lifestyle Women’s Health, (June 13, 2019), /womens-health/in-depth/menstrual-cycle/art-20047186 []. Most hygiene-product companies advise changing a pad or tampon every four to six hours to prevent odor and infection. If a woman has an average menstruation of five days and follows guidelines to change her pad or tampon every six hours, she would need twenty pads or tampons per period. Some women experience heavy menstruation and require more. White, supra note 85.

91. Id. At the time, a 16-count of Always ultra-thin, long pads cost $3.20. Given the base pay of 15 cents an hour, a pack of pads would require about twenty-one hours of work. Additionally, a twenty-count box of Playtex Super Gentle Glide tampons is $3.99. Thus, a woman who wants tampons and uses one box per period would have to work up to twenty-seven hours.

92. Id. According to six-year inmate Adrienne Kitcheyan, “[b]loodstained pants, bartering and begging for pads and tampons was a regular occurrence.”

93. Kaila White, Arizona Prisons Will Give Inmates Free Tampons, The Arizona Republic (Feb. 21, 2018, 4:16 PM), a-prisons-give-free-tampons-female-inmates/361075002/ [].

94. 42 U.S.C. § 2000e-2 (2018).

95. 411 U.S. 792 (1973).

96. Id. at 801.

97. 477 U.S. 57 (1986).

98. Id. at 67 (quoting Henson v. Dundee, 682 F.2d 897, 902 (1982)).

99. 42 U.S.C. § 2000e(f) (2018).

100. Kirklin, supra note 4, at 1062 (citing Bailey v. USX Corp., 850 F.2d 1506, 1509 (11th Cir. 1988) (extending Title VII protections to former employees)).

101. J.S. Welsh, Sex Discrimination in Prison: Title VII Protections for America’s Incarcerated Workers, 42 Harv. J. L. & Gender 477, 490–91 (2019); EEOC Decision No. 86-7 (Apr. 18, 1986).

102. Kirklin, supra note 4, at 1063 (citing Mark A. Rothstein et al., Employment Law 198 (4th ed. 2009)) (identifying the common law agency test, economic realities test, and hybrid test as the main tests used by courts today). The hybrid test is a combination of the common law agency test and the economic realities test. As such, for the purposes of this Note, I will limit my discussion to the first two tests.

103. Id. (citing Peggie R. Smith et al., Principles of Employment Law 4–11 (2009)).

104. Kirklin, supra note 4, at 1063.

105. Id. at 1064.

106. Id. (citing Mitchell H. Rubinstein, Parents as Quasi-Therapists Under the Individuals with Disabilities Education Act, 76 U. Cin. L. Rev. 899, 930 (2008)).

107. 926 F.2d 994 (10th Cir. 1991).

108. Id. at 996.

109. Id. at 997.

110. Id.

111. Id.

112. 952 F. Supp. 652 (D. Neb. 1996).

113. Id. at 653.

114. Id.

115. Id. at 657.

116. Id.

117. Id.

118. Id .

119. United States v. Silk, 331 U.S. 704, 713 (1947).

120. 503 U.S. 318, 323–24 (1992).

121. Id. at 323–24.

122. 859 F.2d 124 (9th Cir. 1988).

123. Id. at 125.

124. Id. at 128.

125. Id.

126. 42 U.S.C. § 2000e(f) (2018).

127. Employed, Merriam-Webster, [].

128. Id.

129. Sawyer, supra note 78.

130. Kirklin, supra note 4, at 1063.

131. 29 U.S.C. §§ 206–207 (establishing wage and hour standards for most public and private employers); see National Mutual Insurance Co. v. Darden, 503 U.S. 318, 325–27 (1992).

132. See Williams v. Meese, 926 F.2d 994 (10th Cir. 1991).; see also McCaslin v. Cornhusker State Indus., 952 F. Supp. 652 (D. Neb. 1996).

133. See Wade v. California Department of Corrections, 171 F. App’x 601, 602 (9th Cir. 2006) (finding the inmate’s relationship to the prison is “penological not pecuniary” and therefore not an employment relationship).

134. Kirklin, supra note 4, at 1064.

135. Id.

136. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

137. 42 U.S.C. § 2000e-5(g) (2018).

138. Sawyer, supra note 78.

139. See 42 U.S.C. § 1983 (2018) (available relief includes prospective relief, compensatory and nominal damages, punitive damages, attorney’s fees, and cost, but not injunctive relief, back pay, front pay, or reinstatement).

140. McCaslin v. Cornhusker State Indus., 952 F. Supp. 652, 657 (D. Neb. 1996).

141. Id.

142. Finkelman, supra note 9, at 112.

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