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Although Douglas County, Ga.’s district attorney ran an office “rife with gender discrimination,” an appeals court panel has determined that the prosecutor’s public status protects him from liability. In remanding the case to U.S. District Court in Atlanta, a three-judge panel of the 11th Circuit Court of Appeals noted that if D.A. J. David McDade had been employed in the private sector, he “would likely be held liable for the civil rights violations he committed.” Lewis v. McDade, No. 99-12782 (11th Cir. Aug. 14, 2000). The issue of whether the private sector is actually held to a higher standard than the public sector when it comes to discrimination claims is prompting attorney David C. Ates of the Atlanta firm Parks, Chesin, Walbert & Miller and co-counsel A. Lee Parks to ask for a rehearing before the entire appeals court. The firm represents the six women who sued McDade, their former boss. Qualified immunity generally protects government officials from civil litigation as long as their public conduct violates no law or constitutional right that a reasonable person should be expected to know. It is based on the theory that government employees, unlike people in the private sector, are immune from suit except in the most egregious cases. The idea is to protect officials from litigation designed to stymie government operations or drain the government of funds. Parks thinks that protection went too far in this case. “Government should be equally, if not more, responsible for enforcing discrimination laws,” he says. Yet, the appeals court ruling for McDade “is actually creating a much lower standard of liability, which basically allowed a public servant to get away with a much more reprehensible level of conduct,” Parks says. “That’s not what immunity is all about.” Unless a rehearing is granted, the 11th Circuit ruling clears the district attorney of allegations of sexual harassment and discrimination that have dogged him for five years. “Obviously, we were disappointed by the ruling,” Ates says. “It was such a very short opinion, given the complexity of the case. I think the judges got both the facts and the law wrong.” The appeals judges were clearly loathe to absolve McDade of all responsibility. Although the panel determined that the district court erred in denying qualified immunity to McDade, they said, “We do so reluctantly, because we do not condone McDade’s reprehensible conduct � which is no way for a person trained in law to run any office.” The judges — J.L. Edmondson, Joel F. Dubina, and Charles R. Wilson — also suggested that McDade’s behavior towards his female staff “may have run afoul of the Georgia rules governing professional conduct.” McDade referred calls to K. Prabhaker Reddy of Reddy & Silvis, a special assistant state attorney general who is defending him. Reddy declined to comment, but Daryl Robinson, deputy counsel to the attorney general, says, “We’re happy with the results at this stage.” SUED BY SIX STAFF MEMBERS In 1995, six former female members of McDade’s county staff — among them an assistant district attorney and his chief investigator — sued him. They claimed that McDade routinely assigned women the most menial office tasks, referred to them by derogatory epithets, made sexually charged and demeaning comments, and engaged in boorish behavior more common to a fraternity house than to a prosecutor’s office. According to court records, McDade often tossed coins down the blouses of his female staff, fired rubber bands at their breasts and buttocks, or grabbed them and lifted them off the floor. He jokingly insinuated that he was indulging in sex when female staff members met with him behind closed doors in his office. Former Assistant District Attorney Lois Gerstenberger, who ran unsuccessfully against McDade in 1998, four years after she resigned, claimed that McDade routinely assigned her a higher caseload than he did his male prosecutors. She said he gave her less prestigious cases and treated her more harshly than her male counterparts. Last year, U.S. District Judge Richard W. Story dismissed the women’s claims that McDade, in his official role as Douglas County’s district attorney, had violated their civil rights to be free from sexual harassment and sex discrimination at work. Story also ruled that the district attorney had not violated federal disability laws when he forced his chief investigator to work at his office switchboard after she had undergone neck surgery, and then later fired her. But Story rejected McDade’s claim that his status as a public official also protected him personally from civil liability, and ordered him to go to trial. McDade’s attorneys argued that for him to be liable for damages, pre-existing law must have clearly put the prosecutor on notice that he was violating his staff’s civil rights. But the appeals panel found that in 1994 — when the alleged offenses took place — sexual harassment law in Georgia “wasn’t clearly established.” Parks disagrees. “Everybody has known about anti-discrimination laws for a long time,” he says. “You’d have to be living under a rock for the last 20 years not to know you can’t do that.” WOMEN’S CONDUCT CITED State attorneys also argued that the women’s own suggestive conduct muddied the legal waters. They illustrated their arguments with the women’s own words and actions. “This case, unlike most sexual harassment cases, contains substantial evidence of sexual comments and/or bantering by the plaintiffs,” according to one brief. McDade’s lawyers described reciprocal behavior by some of the women that included giving the district attorney red underwear; dressing as hookers on Halloween, and presenting him with a bawdy cassette tape. The brief also included a montage of friendly and flattering notes to the prosecutor from his female staff, telling him, “You will always be the boss I love,” “You just couldn’t get any nicer,” and “I love this job and working for you. You’re the greatest, and you spoil me.” The appeals court decided that was enough to protect McDade from a civil trial. “Because we can find no case from this court, the U.S. Supreme Court, or the Georgia Supreme Court which confronts this specific situation and spells out that such treatment does, in fact, violate a female employee’s constitutional rights, we hold that, under these facts McDade is entitled to qualified immunity,” the opinion states. ONLY ONE COMPLAINED The appeals panel also noted that only one of the six women ever complained to McDade about the offensive behavior. As a result, the prosecutor’s office was “an environment where it would not be clear to a reasonable person acting in McDade’s position that his behavior violated plaintiffs’ constitutional rights.” In a separate concurring opinion, Edmondson emphasized that the panel did not rule on whether “a public prosecutor must be totally and always blind to the sex of his different assistant prosecutors when it comes down to assigning them cases.” Whether McDade actually violated the Constitution “has not really been decided at all,” he wrote. “To decide the case on qualified immunity grounds, we have accepted plaintiffs’ version of the facts. No judge and no jury has found these supposed facts to be the truth or the whole truth.” Parks says the appeals court’s qualified immunity ruling is too broad. “These laws were clearly on the books. We all know it,” he says. “Unfortunately, sometimes you see the courts reach out, particularly to the district attorneys and others in law enforcement who are otherwise doing a good job and a thankless job and are before courts every day. And they get the benefit of a doubt.”

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