Four million Americans left their jobs in July 2021. By the end of that month, the number of open jobs reached an all-time high: 10.9 million. Employees are walking out the door in record numbers as part of a trend so remarkable, we even gave it a name: the Great Resignation. With 4.3 million Americans quitting their jobs in January 2022 and 11.3 million job openings, the Great Resignation is only gaining momentum and showing no signs of slowing down.

And as a consequence of employees exiting in droves, employers are hurting. According to The Work Institute, turnover costs employers approximately thirty-three percent of an employee’s annual salary. Other estimates indicate it could cost as much as 1.5 times a worker’s salary. The cumulative effect of so many workers leaving means employers are taking a serious hit; two experts estimate that employee turnover costs American businesses approximately $1 trillion. Employers need a way to stop the bleeding and mitigate the significant losses they have already incurred. Covenants not to compete can do just that: they allow employers to protect their assets and prevent situations like what we are seeing currently with companies hemorrhaging money due to a mass exodus of employees.

To make matters worse, some studies show a direct correlation between quitting rate and inflation; as the number of workers quitting their jobs increases, the rate of wages and prices also increases. In this situation, workers who are not bound by a noncompete may decide they want to leave their jobs and start looking for opportunities to work elsewhere. They could be enticed by a rival company who is willing to pay them more, and if their current employer values and wants to keep them, they will feel pressured to pay the employee more to retain them. So “[i]n this context, if employed workers search more, wage competition among employers increases, leading to an increase in inflationary pressures; if they search less, wage competition falls and inflationary pressures decrease.” In other words, enforcing noncompete agreements can lead to lower rates of inflation and a better economy.

Given that covenants not to compete were designed for such a time as this, with prices increasing faster than they have since 1982 and employees exiting in record numbers, it only makes sense that employers have been enforcing these covenants more frequently. Surveys show that lawsuits involving noncompetes and trade secret agreements have approximately tripled since the year 2000. This increase in enforcement has garnered widespread attention with states across the country rethinking their laws regarding covenants not to compete and culminated in President Biden calling for regulation at the federal level with Executive Order 14036, “Promoting Competition in the American Economy.”

No question—a lot of people are talking about noncompetes right now, and many have very strong opinions on both sides of the issue. But before we can move forward and decide whether covenants not to compete are a good or bad idea for employers, employees, and the overall economy, we must first go back to the beginning and understand their history. 

Holly E. Fredericksen *

* J.D., 2023, University of Richmond School of Law.

“[I]t was the end of the last quarter of 2019 where I was able to drop the lawsuit against the correctional officer who had sexually harmed me when I knew . . . that the carceral state is not the way for me to find healing . . . . I was not going to seek my transformation and restoration through this system.”

Each year, rhetoric and legislation attacking transgender, non-binary, gender non-conforming and intersex individuals seemingly grows louder. Many political institutions in the United States perpetuate and enable the oppression of these individuals, one of which is the United States prison system. In the quotation above, Dominique Morgan, the Executive Director of Black and Pink, a prison abolitionist organization, describes her process of coming to terms with the harms she experienced in prison as a transgender woman. Morgan, originally charged with murder, lived eighteen months in solitary confinement, six of those on death row.

This quotation from Morgan not only illustrates how the prison system failed to ensure her safety (as a person convicted of a crime), but it also expresses her reckoning with the failure of the justice system to provide her with a process through which she could heal (as someone who survived a crime). Morgan’s story represents just one of the dangers people face in prisons, especially the vulnerability often heightened for people historically marginalized by society.

Transgender, non-binary, gender-non-conforming, and intersex (“TNGI”) individuals experience violence, sexual assault, social stigmatization, and discrimination from society and, in particular, the United States prison system. Despite some efforts to make housing in prisons safer for TNGI people, the system still fails to protect them.

TNGI people face harms in prison that cisgender people do not because of the “hyper-gendered” structure of the prison system. For example, prison staff often misgender TNGI people, and prison housing policies regularly result in placing TNGI people in prisons
according to their sex at birth instead of their gender identity. In addition, TNGI people are ten times more likely to be sexually assaulted in prison than the general prison population.

This Comment seeks to center the experiences of TNGI people living in prisons to shed light on the harms they incur from the United States prison system. Because of the gendered structure of the prison system, TNGI people face additional harms that cisgender prisoners do not experience, and the reforms to prison housing policies have failed to fully address the root of the problem. Restorative justice, through mechanisms used in place of prisons as well as through values-based policymaking, can better account for TNGI people’s well-being by breaking away from the gender binary in prisons and focusing on the diversity of human experiences and methods of relationship-building.

Part I seeks to illuminate the experiences of TNGI people in the United States and, more specifically, in prison. I also introduce the current prison housing policies and practices in the United States. In Part II, I provide a preview of restorative justice, which will be combined with the theories in Part III to form the rest of the argument.

The first section of Part III introduces theories concerning the gendered structure of prisons and how this perpetuates the gender binary. I then expand upon these theories and apply them to the experiences of TNGI people in prison. Next, I explain how the theory of relational restorative justice can help move past the gender binary in prisons and create a more equitable response to wrong-doings. Last, I discuss the current movements concerning prison housing reform and explain why these are lacking.

John G. Sims *

* J.D., 2023, University of Richmond School of Law.