A dental hygienist who says she was fired by the Virginia Department of Corrections after a body scanner detected she was wearing a tampon can proceed with a sex discrimination lawsuit against the state, a federal judge ruled this week.
The employee, Joyce Flores, alleged she was interrogated for hours at Augusta Correctional Center on suspicion she was smuggling contraband. She said she was ultimately terminated from her position at the facility despite demonstrating to female guards that she was menstruating and allowing them to search her car and work area — steps she says turned up no evidence of illegal activity.
“At no point did (Flores) bring or attempt to bring contraband into Augusta Correctional Center,” Flores’ lawsuit alleges. Her “employment was terminated because she was a menstruating female utilizing a feminine hygiene product when she arrived to work.”
The incident took place in December 2019. Flores filed suit in November of this year after an investigation by the Equal Employment Opportunity Commission.
The Department of Corrections responded by asking a judge to dismiss the claim, arguing that she had not sufficiently demonstrated gender was a motivating factor in her termination.
District Judge Thomas Cullen rejected that motion in an opinion issued Monday. “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.
The Virginia Department of Corrections drew a nationwide backlash in 2018 after it instituted a policy barring women from visiting prisons while wearing a tampon, citing the inability of new body-scanning technology used for screening visitors to differentiate feminine hygiene products from drugs and other contraband.
“If someone chooses to visit a Virginia Department of Corrections inmate, he or she cannot have anything hidden inside a body cavity,” said department spokeswoman Lisa Kinney in a statement at the time.
The department quickly rescinded the policy, but corrections officials told lawmakers considering legislation addressing the issue in 2019 that they were still blocking women wearing tampons from full visitation privileges, allowing them to see loved ones only through a glass partition or video feed. “We just can’t tell if it’s drugs or a tampon. It just shows if there’s something wrong,” Margie Vargo, who oversees the DOC’s visitation policies, told lawmakers.
Staff have been required to pass through the same body scanners, though at no point were employees barred from wearing tampons or menstrual cups, according to Flores’ lawsuit.
Her account suggests prison officials’ suspicions were raised because her tampon was heavily saturated after a two-hour commute from her home in Henrico to the Craigsville facility. After entering the facility, she says she had turned to toilet paper as a temporary measure before she was asked to reenter the scanner two hours later. As Cullen put it, “the second image looked different, creating an anomaly.”