Virginia prison agency discriminated against female employee in tampon case, jury rules

A jury found Monday that the Virginia Department of Corrections discriminated against a former employee who was fired after a body scanner detected a tampon she was wearing and officials suspected she was carrying contraband into the prison.

The jury, which heard the case in the U.S. District Court for the Western District of Virginia, awarded the former employee, dental hygienist Joyce Flores, $85,000 in damages. Judge Elizabeth K. Dillon will consider additional damages for back pay and attorney fees at a later date.

In a statement issued after the verdict by Butler Curwood, PLC, the firm representing Flores in the case, attorney Paul Falabella said that “no one should be terminated from work for using a tampon.”

VDOC spokesperson Benjamin Jarvela said the agency had “no comment at this time.”

The case stems from a July 17, 2019, incident when Flores first entered the Augusta Correctional Center for the day’s work wearing what she described as a heavily saturated tampon after a two-hour commute. While Flores initially cleared security, she later removed the tampon and temporarily replaced it with tissue paper after realizing she had forgotten a replacement.

Shortly after inserting the tissue paper, Flores was asked to go through the security checkpoint again after officials flagged what they said were suspicious images on the earlier body scan that could be contraband. Questioned on why the two scans looked different, Flores offered to demonstrate to female security officers that she was menstruating and then inserted another tampon to go through the scanner a third time.

Neither questioning of Flores nor K9 searches of the facility’s medical unit and the dental area turned up any contraband.

Flores was later placed on administrative leave and then fired. She filed a lawsuit in November 2021 against the Department of Corrections, alleging that she had been unlawfully fired on the basis of her sex and asking for $300,000 in damages.

“At no point did plaintiff bring or attempt to bring contraband into (Augusta Correctional Center),” the lawsuit states. Her “employment was terminated because she was a menstruating female utilizing a feminine hygiene product when she arrived to work.”

In February 2021, U.S. District Judge Thomas Cullen ruled the sex discrimination suit could go forward over objections from the VDOC.

“But for Flores’s menstruation and use of a tampon — conditions inextricable from her sex and her child-bearing capacity — she would not have been discharged,” he wrote.

In a court filing in response to Flores’ complaint, VDOC contended that its response to the incident was “appropriate” and in response to “legitimate custodial and security interests.”

“The shape of the anomaly” revealed by the body scan “was that of an unknown object with a tie around the end — similar to the manner in which illegal drugs are packaged and shipped for distribution,” the agency said. It also said a female security program coordinator had reviewed the scan and “agreed that an anomaly was present.”

Tampon usage became a political flashpoint for the Department of Corrections in 2018 when it instituted a policy barring female visitors from wearing tampons into facilities. The agency said body scanners couldn’t distinguish between tampons and contraband such as drugs that could be transported in the vagina.

While VDOC formally rolled back the policy, officials told the General Assembly in 2019 that correctional facilities were still blocking female visitors wearing tampons from visiting inmates in person, instead directing them to conduct the visit through a glass partition or video feed.

The Department of Corrections repeatedly said in its response to Flores’ complaint that “at no time were individuals working at VDOC facilities prohibited from wearing tampons, menstrual cups or other feminine hygiene products to work.”

Flores acknowledged in her lawsuit that the agency hadn’t barred workers from wearing tampons or other feminine hygiene products.

“However, employees pass through the same body scanners when arriving to work each day as offender visitors do,” her suit noted. “Therefore, the same issue of ‘not being able to tell if it’s drugs or a tampon’ applied to employees wearing tampons and/or menstrual c[u]ps to work at VDOC facilities.”

by Sarah Vogelsong, Virginia Mercury