Fired over a tampon: Jury awards woman $85K — then court tacks on an additional $258K

Even if a six-figure payout doesn’t make you cringe, the details of this lawsuit probably will.

A woman in Virginia was fired for “suspicion of contraband” because she wore a tampon at work. Here’s the rest of the story:

Body screenings as a security measure

Meet Joyce Flores. In March 2019, Flores was hired as a dental hygienist at the Virginia Department of Correction’s Augusta Correctional Center (Center).

On July 17, 2019, Flores went through a standard security scan to enter the Center. According to security, the scan produced an “abnormal image,” displaying an object in Flores’ “lower body cavity.”

The Center’s security team believed Flores “might be smuggling contraband into the facility.”

But Flores said she was menstruating and explained that the object was a tampon. She even offered to go to a restroom with a female security officer to prove she was on her period.

Later that day, the security team subjected Flores to a second scan. It didn’t show the same object.

Flores then explained that she had replaced her tampon with other sanitary protection after using the restroom. She then went to the restroom, inserted a tampon and was scanned a third time.

Despite searches of Flores’s car and her medical area at the Center, no contraband with any connection to her was ever found. Even so, about two weeks later, on July 31, 2019, the warden of the Center terminated Flores.

Did termination violate Title VII? Jury says ‘yes’

In November of 2020, Flores sued her former employer, alleging it discriminated against her on the basis of her sex in violation of Title VII.

The court allowed a disparate treatment claim to proceed to trial, saying a reasonable jury could find the employer “intentionally discriminated against her on the basis of sex.”

On Sept. 15, 2022, after a three-day trial, a jury returned an $85,000 verdict for Flores on her disparate treatment claim.

After the trial, the employer renewed an earlier motion for judgment. Flores then filed motions for back-pay damages and attorneys’ fees.

Court: Use of tampon is impossible to detangle from sex

The court said the record developed at trial was “substantially similar to the summary-judgment record.”

Flores plausibly asserted circumstantial evidence that would allow a reasonable jury to find the employer intentionally discriminated against her on the basis of sex, the court held.

Specifically, she pointed to the employer’s training materials on the body scanning system, which stated that “nothing should be inside the lower cavity of any person” and that “most contraband will be concealed in the woman [sic] internal body cavity.”

The employer based its own training on those “flawed assumptions even though they plainly contradicted data from one of its own talking points memoranda from September 2018, in which [the employer said] only 9% of contraband detected in its facilities from January 2016 to September 2018 was in any body cavity — let alone female body cavities in particular,” Flores asserted.

Notably, the employee who served as the primary investigator in the Flores incident and the warden who made the decision to terminate Flores attended this training, she pointed out.

Moreover, employer reps had made multiple public statements indicating that the scanners could not distinguish between a tampon and contraband in the lower body cavity. And at the time the warden decided to fire Flores, employees working on the investigation were aware that the scanners were unable to discern a tampon from contraband.

Based on this info, the court determined a reasonable jury could find that, as a result of the “prejudicial training” they received, the warden and the investigator “harbored a discriminatory bias against females with respect to the perceived likelihood that contraband smuggled into [the Center would]  come through females’ lower body cavities.” Moreover, it was also plausible to believe they had “acted upon that bias” when they subjected Flores to additional scrutiny and fired her.

The court also observed that if the employer had wrongfully concluded that Flores smuggled contraband into the facility based on the aforementioned flawed assumptions, inaccurate information and technical limitations, then a “reasonable jury could conclude that, but-for her menstruation and use of a tampon – conditions inextricable from her sex – then the employer would not have terminated her employment.”

Thus, the court denied the employer’s motion for judgment.

Court tacks on back pay damages, attorneys’ fees

Next, the court turned to Flores’ motion for back pay damages.

The U.S. Supreme Court has established that a prevailing plaintiff under Title VII should generally be awarded back pay – and that such back pay should be denied only in limited circumstances. Moreover, Title VII also authorizes interest as part of back pay remedies.

Here, Flores earned an average of $1,804 per week in 2019 while working at the Center. She was placed on administrative leave without pay on July 17 and terminated on July 31. Afterward, she was out of work without pay for 69 weeks until she was hired on Nov. 16, 2020. Thus, during that time, Flores would’ve earned $124,476. As such, she was entitled to that amount of back pay, plus interest, unless the employer could show a persuasive reason for it to be reduced.

The court rejected most of the employer’s attempts to reduce the back pay damages that Flores was entitled to. However, it agreed that some factors warranted a slight reduction. For example, during her job search, Flores 1) did not apply to any entry-level positions, and 2) “largely limited” her search to public sector roles.

After running the numbers with the slight reductions, the court granted in part and denied in part her motion for an award of back pay damages. It found she was entitled to $93,808 in back pay, plus 6% annual prejudgment interest accruing from her termination date of July 31, 2019.

As to Flores’ motion for attorneys’ fees, the court analyzed and verified the costs. It awarded $147,842.50 in attorneys’ fees and $17,045.22 in costs.

In sum, the court denied the employer’s motion for judgment and granted in part Flores’ motions for back pay damages and attorneys’ fees.

Flores v. Va. Dep’t of Corr., No. 5:20-cv-00087, 2023 U.S. Dist. LEXIS 172884 (W.D. Va. 9/27/23).