Three former and current female employees of the Virginia Department of Corrections are pursuing a class-action lawsuit against the agency, saying its policies on body scanners discriminate against women.

The inability of the state’s body-scanner technology to distinguish between contraband like drugs and menstrual products such as tampons, menstrual cups and intrauterine devices has led to multiple women being strip searched and in some cases terminated for using menstrual products, allege Mallory Patterson, Emily Comer and Carla McDowney. 

“No one should have their job threatened, be subjected to a strip search, or have their employment terminated simply because they are menstruating, using a feminine hygiene product, or using a contraceptive device at work,” states the women’s lawsuit, which was filed in the U.S. District Court for the Eastern District of Virginia this November. “Such conduct is sex discrimination in violation of federal law.” 

Patterson and Comer, two former employees of VADOC, and McDowney, a correctional officer in training, are suing the agency and Director Chadwick Dotson over treatment they say they experienced, as well as seeking the court’s approval to open a class-action case. Dotson took over the Virginia Department of Corrections’ top post in September 2023. 

Roughly 46% of the agency’s 13,000 employees are female, the suit notes. The department also employs about 1,000 more people through staffing companies. 

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

In September 2022, a federal jury found VADOC had discriminated against dental hygienist Joyce Flores when it fired her after a body scanner at Augusta Correctional Center detected a tampon she was wearing and officials suspected she was trying to bring contraband into the prison. U.S. District Judge Elizabeth K. Dillon later awarded Flores, who was also strip searched, around $287,000 in damages, costs and attorney’s fees. 

The search “was one of the worst things I ever had to do in my life,” Flores told the Mercury this January. 

“I couldn’t believe I was going through this process,” she said. “And I couldn’t believe in a state facility that it would be permitted to have things like this go on.”  

Patterson, Comer and McDowney are being represented by Paul Falabella of Butler Curwood, PLC, which also represented Flores.

In response to several questions about the most recent suit and whether VADOC had changed its policy on body scanners after the Flores ruling, agency spokesperson Kyle Gibson said only that “VADOC does not routinely comment on active or pending litigation.” After receiving an extension from the courts, the agency has until Feb. 24 to file a response to the suit. 

Employees describe strip searches and terminations

Two of the women bringing the lawsuit allege that after body scanners detected their menstrual products, prison officials gave them the choice of being strip searched or being terminated. 

According to the suit, Patterson, who was employed through a contractor as a therapeutic counselor at Indian Creek Correctional Center in Chesapeake, was flagged as suspicious after going through a body scanner on Nov. 10, 2021. 

When she told an investigator she was wearing a menstrual cup, the lawsuit says the investigator told her she had two options: “Comply with a strip search or leave and be separated from employment, pending potential criminal charges.” The suit says she agreed to the search because she felt it was the only way “to keep her job, prove her innocence, and avoid criminal charges.” 

As she wept while signing the strip search consent form, the suit says a corrections official told her, “This happens to some staff every year and each one of them feels just like you do right now.”

According to the court filing, three officers then took Patterson “into the bathroom and proceeded to instruct her to take every piece of clothing off until she was standing naked on the dirty bathroom floor. Patterson was then instructed to remove and show her menstrual cup to the officers, which she did. Patterson was crying the entire time.” 

The next month, she resigned because she “felt she could not continue to work in the environment at” Indian Creek Correctional. 

McDowney, who began working as a correctional officer in training at Haynesville Correctional Center in Richmond County in August 2023, says in the lawsuit that she was wearing a tampon and sanitary pad when she was stopped at the facility’s body scanner on Oct. 27, 2023. 

When the warden asked if McDowney consented to a strip search, “McDowney asked ‘and if I don’t?’ The Warden replied then ‘you don’t have a job,’” the suit says. 

After she agreed to the search, McDowney was taken into a bathroom, where VADOC officials “searched each clothing item as she removed them until she was standing barefoot and completely naked on the dirty bathroom floor,” the court filing says. “She was then instructed to remove her tampon and sanitary pad, which she did.” 

After re-dressing, the suit says that McDowney asked the warden, “‘If I go through this machine again next month and I am on my period again, am I going to have to go through something like this again?’ The Warden shrugged his shoulders and made a facial expression that indicated ‘maybe.’”  

Comer was employed through a staffing agency as a licensed practical nurse at State Farm Correctional Center in Goochland between April 2020 and April 2022. On April 4, 2022, the lawsuit says, she was stopped at the body scanner. Although she was not menstruating, she had an IUD, a device implanted in the uterus that prevents conception. On April 7, she was informed that the warden had decided she wasn’t allowed back into the facility “due to suspicious body scans.” 

Flores told the Mercury that before her own strip search in December 2019, “I had heard that there were a couple of women that were dismissed and that one of them had been accused of bringing in contraband in her vagina. But I didn’t know the specifics. I had heard from other women that if you are on your period, just be careful coming in.” 

Some women, she said, told her “that in order to get through the day, they’d push their limits with the feminine products so they wouldn’t have to change them while they were there.”

Agency policy

Rather than isolated incidents, both Flores’ lawsuit and the action brought by Patterson, McDowney and Comer contend their searches were the product of agency policy that is inherently discriminatory toward women because it results in strip searches or firings that are not imposed on men, who do not menstruate. 

Both federal Judge Thomas Cullen and a jury agreed with that claim in Flores’ suit, with Cullen ruling in February 2021 that “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.” 

The most recent lawsuit says the Virginia Department of Corrections’ standard operating procedures require all people entering a correctional facility, including employees, to go through the body scanner. 

While VADOC does not make its operating procedures for searches of inmates and other persons publicly available on its website, a copy of the procedures filed in the Flores case states that “when an unknown object is detected on an employee, intern, volunteer, or official visitor, the Facility Unit Head or Administrative Duty Officer may authorize a strip search.” 

Furthermore, it declares that “all facility employees are subject to search as a condition of employment,” and “employee refusal to submit to a search … is justification for barring the individual from the facility and possible termination.” 

The document containing those procedures was filed with the court in February 2022 but may have been updated since then. However, the Department of Corrections said it was unable to fulfill a Freedom of Information Act request for a copy of “the agency’s SOPs for screenings and searches of persons” within five working days and would require an additional seven. An agency spokesperson also did not provide an answer to a question about whether the department had changed its operating procedures after the Flores case. 

VADOC has previously argued the scanners are necessary to crack down on contraband flowing into prisons. Some of the illegal material smuggled into facilities comes from employees: During the COVID-19 pandemic, with all visitation halted, positive drug tests for inmates rose and drug seizures and overdoses fell only slightly. On Jan. 3, the agency announced a staffer had attempted to smuggle tobacco into Indian Creek Correctional Center by concealing it in her groin area. In October, an employee at Sussex I State Prison was arrested after a search of their vehicle found nine cell phones and other cell phone equipment, five packages of tobacco and tobacco wrapping papers. 

Flores said during her own strip search, officials showed “absolutely no sympathy.” 

“In their mind, they knew that I had something in my body that resembled more to them to be like contraband than to be like a tampon,” she said. “They were very matter of fact. They were cold.” 

VADOC officials have repeatedly said their scanners are unable to tell the difference between menstrual products and contraband. Internal agency memos have said that the state’s body scanner technology “is not perfect and it is not able to distinguish tampons from contraband” and “body scanners cannot differentiate between tampons/menstrual cups or other contraband in a body cavity.” 

In 2019, an agency employee told the General Assembly, “We can’t tell what’s in someone as they go through a body scanner. We just can’t tell if it’s drugs or a tampon. It just shows if there’s something wrong.”

The statement followed public outcry over an earlier policy that banned women from wearing tampons while visiting prisons. After the furor, then-Virginia Secretary of Public Safety and Homeland Security Brian Moran suspended the policy. 

Flores said her time with the agency frequently “felt like I was experiencing remnants of sexism.” 

“I was acutely aware that other women were having trouble feeling comfortable while they were menstruating,” she said. After her own search and termination, she said she realized “that there were likely other women who had gone through what I had been put through.” 

“I knew what happened to me could never happen to a man biologically,” she said.