Prison Labor as a Lawful Form of Race Discrimination
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Prison Labor as a Lawful Form of
Race Discrimination
Katherine E. Leung*
ABSTRACT
In this paper, I argue that exceptions to the Fair Labor Standards Act per-
mitting the use of prison labor at sub-minimum wages are a form of legalized
race discrimination. This discrimination is the result of. firmly entrenched struc-
tures of oppression that lead to the incarceration of people of color, particularly
men of color, at markedly higher rates than white people; prison job training
programs that exploit prisoners' labor for the benefit of corporations without
noticeably improving prisoners' job prospects upon their release; and hiring
trends outside of prison that clearly disfavor formerly incarcerated and non-
white workers. Corporations that choose to use prison labor generally compart-
mentalize tasks performed by prison workers and those performed by civilian
workers along the same lines used to classify white and non-white jobs
prior to the enactment of Title VII. The tasks reserved for prisoners under this
system are generally lower wage, lower skilled manufacturing jobs, while those
reserved for civilian workers come with higher wages, more skilled tasks, and
are more likely to be customer-facing. The result is that companies frequently
choose to assign the least desirable, most menial tasks to prison workers, a
group primarily made up of people of color, while these same companies hire
predominantly white civilian workers to perform higher-skill jobs. This trend is
actually magnified in jurisdictions that have banned the box, I where employ-
ers are hiring fewer Black and Latinx workers than they hired when permitted to
ask about criminal records on application paperwork. This amplifies the dis-
criminatory effects of this statutory loophole.2 This counterintuitive outcome
* Katherine E. Leung is a field attorney with the National Labor Relations Board. The
views expressed in this article are her views alone and are not those of the National Labor
Relations Board or the United States Government. She holds an A.B. from Wellesley College
and a J.D. from Harvard Law School. Thank you to Professor Benjamin Sachs for his support
and guidance in this project, and to Monica Wilk for being a sounding board and source of
encouragement.
1 Ban the Box is a social justice campaign that gained momentum in the 2010s and
pushes for state and local legislation prohibiting employers from asking prospective employees
to check a box if they have ever been convicted of a crime. Proponents of the campaign argue
that, while some jobs require a so-called clean criminal background check, many jobs that
use this type of application screen do not. In a majority of cases, they argue, the box fails to
filter for a bona fide job requirement and instead acts as a barrier to the reintegration of for-
merly incarcerated individuals into society. For more information on ban the box policies,
see generally Jennifer L. Doleac & Benjamin Hansen, The Unintended Consequences Of Ban
The Box: Statistical Discrimination and Employment Outcomes when Criminal Histories are
Hidden (October 2017) (working paper), http://jenniferdoleac.com/wp-content/uploads/2015/
03/DoleacHansenBanTheBox.pdf [https://perma.cc/3LYR-ZCKR]; see also Michelle Na-
tividad Rodriguez & Peter Leasure, Do 'Ban-the-Box' Laws Help Expand Employers' Candi-
date Pools? HR MAGAZINE (May 25, 2017), https://www.shrm.org/hr-today/news/hr-maga
zine/0617/pages/do-ban-the-box-laws-help-expand-employers'-candidate-pools.aspx [https://
perma.cc/D48K-CE5K].
2 See Doleac & Hansen, supra note 1, at 5; see also DOUGLAS A. BLACKMON, SLAVERY BY
ANOTHER NAME: THE RE-ENSLAVEMENT OF BLACK PEOPLE IN AMERICA FROM THE CIVIL WAR
TO WORLD WAR 11 (2008); WAKE Up DEAD MAN: HARD LABOR AND SOUmHERN BLUES (Bruce](ViewImageLocal?handle=hein.journals/hcrcl53&div=21&collection=&method=preview&ext=.png&size=3)
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Prison Labor as a Lawful Form of Race Discrimination
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