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Virginia Department of Corrections staffer discriminated against, fired after scan detected tampon

RICHMOND, Va. (WRIC) — The Virginia Department of Corrections (VDOC) was found guilty of discriminating against a former employee who was fired after a body scanner detected a tampon she was using and she was suspected of smuggling contraband.

Joyce Flores, a former dental hygienist at the Augusta Correctional Center, filed a sexual discrimination lawsuit in November 2020 against the department in the U.S. District Court for the Western District of Virginia. The lawsuit, which survived an effort to have it thrown out, sought $300,000 in damages.

The jury’s verdict in the case favored Flores, awarding her $85,000 in damages. The federal judge overseeing the case will consider additional payments, including potential back-pay damages and attorney fees.

“No one should be terminated from work for using a tampon,” said Paul Falabella, Ms. Flores’ lead lawyer at trial, in a statement. “We are grateful for the jury’s service and for listening to and understanding what Ms. Flores experienced that day in July 2019 and in the aftermath.”

A Virginia Department of Correction spokesperson said Tuesday that the agency had no comment regarding the case.

The lawsuit states Flores was menstruating before she began her trip to work on July 17, 2019, going into detail about her experience on that day and her long commute from Sandston to Craigsville.

According to the suit, Flores began her day preparing for patients in her dental office and eventually went to the bathroom and changed her tampon. Flores forgot to bring another tampon with her when she went to the bathroom again later that morning.

“She knew she had a patient waiting for her to return, so she removed the tampon and replaced it with a small amount of tissue paper,” the lawsuit states.

Not long after returning to her dental office, a prison employee came and asked Flores to go through the body scanner again, two hours after she had started work, the complaint claims.

Flores’ lawsuit said the employee interrogated her, telling Flores he believed the body scan image from when she arrived “contained a suspicious item in her vagina that was not present on the body scan image taken moments earlier.” Flores offered to prove she was on her period by going to the restroom with two female officers.

“Two female officers accompanied Plaintiff to [the] restroom and one officer accompanied her to the stall where she confirmed that she did not have a tampon in, but that there was tissue with menstrual fluid on it, which she had removed from her vagina,” the lawsuit states.

The complaint also alleged Flores put in a new tampon and went through the scanner again, claiming she saw “multiple VDOC security staff taking pictures of the image of her body scan with their personal cell phones.”

Flores claims she failed to convince the warden the images showed a tampon and urged him and the state’s Department of Corrections to contact the manufacturer of the body scanners for them to “get a better understanding of what they were seeing.” She was put on administrative leave for “suspicion of contraband” and two weeks later, on July 31, 2019, was fired.

The department argued Flores had not presented allegations showing her gender played a part in her dismissal in a bid to have the lawsuit dismissed. U.S. District Judge Thomas T. Cullen disagreed, ruling in February 2021 that the lawsuit could continue.

“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,” Cullen wrote in an opinion.

Flores cited a highly controversial policy issued by the Virginia Department of Corrections in September 2018 preventing women visiting state prisons from using tampons or menstrual cups. The department argued those products could “appear” to be contraband in a scan.

The policy was eventually rolled back after criticism, but Flores alleges in her suit that “it was made public that VDOC was still treating visitors that were wearing tampons or menstrual cups differently than other visitors to the prisons.”

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