Virginia corrections dept asks court to dismiss sex discrimination suit over strip search policies

The Virginia Department of Corrections has asked a federal court to dismiss a lawsuit by three current and former female employees who say its policies on body scanners discriminate against women because the technology is unable to distinguish between contraband and menstrual or reproductive products. 

The agency argues its policies, which permit the firing of an employee if they don’t agree to a strip search when a body scan shows an “anomaly” in an individual’s body cavity, are “gender-neutral,” allowing “consensual strip searches of any employee, regardless of gender.”

Additionally, the department says, the three women have offered “no statistical data demonstrating that women are treated less favorably under the facially neutral policy than men.” 

Female workers sue Virginia prison agency, claiming body searches discriminate against women

In response to questions from the Mercury about how many strip searches VDOC conducted over the past five years and what percentages of those searches were on biological women and biological men, the agency’s FOIA officer, Colleen Maxwell, said in an email that the department “does not have any records responsive to your request because the records do not exist.”

“Pursuant to § 2.2-3704(D) of the Code of Virginia, ‘no public body shall be required to create a new record if the record does not already exist,’” Maxwell wrote.

The lawsuit brought by Mallory Patterson and Emily Comer, two former VDOC employees, and current employee Carla McDowney contends that women are disproportionately impacted by the agency’s body scanning procedures, which authorize a strip search of an employee if the scanner shows the employee has an object in his or her body. 

“If an employee refuses to undergo such a search, the [standard operating procedure] permits VDOC to bar the person from the correctional facility or to terminate their employment,” three attorneys from Williams Mullen law firm, who are representing the corrections department, wrote in their most recent filing in the case with the U.S. District Court for the Eastern District of Virginia. 

Patterson, Comer and McDowney say that because the body-scanning technology used by the department cannot distinguish between contraband like drugs and menstrual products such as tampons, menstrual cups and intrauterine devices, multiple women have been strip searched and in some cases terminated for using menstrual or birth control products. 

“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,” they argued in their lawsuit. “Such conduct is sex discrimination in violation of federal law.” 

Patterson, a former therapeutic counselor at Indian Creek Correctional Center in Chesapeake, was strip searched after a body scanner flagged her menstrual cup. She later resigned as a result of the experience. McDowney, a correctional officer in training at Haynesville Correctional Center in Richmond County, was strip searched after the scanner flagged her tampon and sanitary pad. And Comer, a former licensed practical nurse at State Farm Correctional Center in Goochland County, was flagged by a body scanner while wearing an IUD and three days later was terminated “due to suspicious body scans.” 

The three women are also seeking to open a class action lawsuit against the Virginia Department of Corrections. 

The department, however, says there is no evidence of intentional sex discrimination or a pattern of “less favorable treatment towards women” compared to men, none of the women’s allegations “demonstrate sufficiently severe or pervasive conduct that altered the terms of conditions of their employment” such that they could claim they experienced a “hostile work environment,” and the body scanner policy serves the state’s “well-established and legitimate interest” in keeping drugs out of prisons. 

The standard operating procedure for use of the body scanners “applies equally to all sexes and genders,” the department wrote. 

“Plaintiffs were searched or terminated from their facility not because of their sex, but because a body scanner detected an unknown or anomalous object. Gender played no part in their experiences,” attorneys wrote. 

Nor, they contend, did the strip searches of Patterson and McDowney rise to the level of an “adverse employment action” — an act that “adversely affect[s] the terms, conditions, or benefits of the plaintiff’s employment” — needed to make a discrimination claim under Title VII of the Civil Rights Act. 

“These searches did not affect Plaintiffs’ employment conditions in a manner equivalent to hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a significant change in benefits,” said VDOC in its filing. While “the strip searches were conducted pursuant to the [standard operating procedure], and although they were likely unpleasant and uncomfortable, they do not constitute an adverse employment action as a matter of law.” 

Finally, the department said, the body scans and the strip searches authorized in the case of anomalies are justified because of the important role they play in reducing the flow of drugs into prisons. 

It is “the unfortunate truth that illegal material is sometimes smuggled in by a prison’s own employees,” said VDOC, noting a Jan. 3, 2024 attempt by a female employee to smuggle tobacco into the Indian Creek Correctional Center by “secreting it in her groin area.” 

“What is inappropriate in one environment may be appropriate — or even necessary — in another,” the department wrote in a March 14 filing. “Here, Plaintiffs do not work in a corporate office building. They worked at a prison where the risk of contraband smuggling is all too real and all too dangerous. … The use of body scans and strip searches may seem invasive, but they are necessary precautions to protect staff, prisoners, and the public from the flow of drugs, weapons, and other contraband into the prison system.”

The Flores case

Patterson, Comer and McDowney, however, say a September 2022 ruling by a jury that VDOC 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 clearly establish “discrimination in employment on the basis of menstruation and related conditions is sex discrimination in violation of federal law.” 

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

“To discriminate against an employee because of a sex-linked trait is to discriminate against an employee because of sex in contravention of Title VII,” wrote Paul Falabella, an attorney for the three women who also represented Flores in the prior case, in a March 8 filing. 

He pointed in particular to the U.S. Supreme Court’s 2020 ruling in Bostock v. Clayton County — a landmark case in which an employee of Clayton County, Georgia, was fired from his job after promoting a gay softball league he had joined — that found that when determining whether sex discrimination occurred, “it doesn’t matter if the employer treated women as a group the same when compared to men as a group.”

“If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred,” wrote Justice Neil Gorsuch in the 6-3 opinion.  

In his most recent filing, Falabella said that under that standard, “if we changed Plaintiffs’ sex to male, the result here would change because a male employee does not menstruate, use feminine hygiene products, or use internal contraceptive devices and therefore would not be discriminated against for same.”

VDOC says that’s an incorrect understanding of the Bostock ruling, and that the Flores case is different from the current one.

“Using the Bostock test, if we changed Plaintiffs’ sex to male, and an anomaly or unknown object was detected by the body scanner, the exact same result would occur,” the agency wrote in a March 14 filing. “They would be subject to search. … There is simply no causal connection between the alleged strip searches of Patterson and McDowney and their gender.”

Instead, the department said, the court should follow a federal court ruling out of Georgia in Coleman v. Bobby Dodd Institute. In that case, a woman claimed she had suffered sex discrimination when she was fired from a 911 call center job by the Bobby Dodd Institute, an employment agency, after heavy periods linked to menopause caused her to leak blood onto a company chair and onto a carpet on the way to the bathroom. The Georgia-based court dismissed her suit, finding she hadn’t adequately proved sex discrimination. Coleman appealed the ruling, and the two parties later reached a confidential settlement. 

Falabella also argued that the choice presented to Patterson and McDowney did constitute an adverse employment action that met federal standards for a sex discrimination claim.  

“The context of the threats of termination is about as unique, humiliating, and dire as could occur in a place of employment — Patterson and McDowney had to either strip naked in the workplace in front of corrections officers, remove soiled feminine hygiene products from their vaginas while menstruating or be subject to termination from employment (and possible criminal investigation),” he wrote.