The issue of whether prisoners can be considered employees is at least superficially similar to whether students can be considered employees. In both cases, the individual seeking protection clearly has a non-employment relationship with the defendant, and the question is whether he or she can also have an employment relationship with the defendant that is covered by EEO law. In contrast to the case with prisoners, however, courts and the EEOC have been more willing to conclude that students can be considered employees. For example, a student who performs work for a university as part of a graduate program and who receives a stipend might be considered an employee while she performs the work.
So why the difference?
As I see it, the reason is that a prison's penological relationship with a prisoner always comes first. Thus, even if a prisoner is performing work, a prison's decisions with respect to that prisoner's work must be driven by penological concerns first and foremost. By contrast, an educational institution's pedagogical relationship with a student may be less important -- or at least no more important -- in some contexts than its employment relationship, and in those circumstances, a student may be protected by EEO law.
This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.