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Judge Rosemary Barkett of the 11th U.S. Circuit Court of Appeals thinks a district attorney should know that tossing coins down a female employee’s blouse is offensive. The court has refused to hear en banc the appeal of a sexual harassment case against David McDade, a District Attorney in Douglas County, Georgia, who tossed the coins and engaged in other alleged sexual harassment against his female employees. But Barkett disagreed with the court’s majority, and, in a strongly dissenting opinion, has asked the court to reconsider. Lewis v. McDade, No. 99-12782 (11th Cir. May 9, 2001, slip op.) An appeals panel last August found that McDade’s office was “rife with gender discrimination.” (Daily Report, Aug. 25, 2000). In 1995, McDade was sued by six women on his office staff, including a former assistant district attorney, who accused him of sexual harassment. But the panel, which did not include Barkett, ruled that McDade, as a government employee, was entitled to qualified immunity from civil liability suits. Had he been employed in the private sector, the court added, he “would likely be held liable for the civil rights violations he committed.” According to court records, McDade’s behavior included: Calling his female employees “bitch,” “blonde bombshell,” “smurfette” and “bimbette;” Photographing his female employees’ buttocks; Tossing coins and other objects down the blouses of female employees; Telling a female employee to uncross and cross her legs while he watched; Remarking to employees that women are only good for “making babies;” Telling employees that “women don’t have the balls to be prosecutors;” and Embarrassing his female employees with statements such as “You can’t come in. Rita doesn’t have her clothes on.” The appeals panel also determined that McDade could not be held responsible for this behavior because there were no pre-existing cases that would have alerted him to his actions constituting sexual harassment. As a result, the panel concluded, a person in McDade’s position would not have clearly understood that such behavior violated his female employees’ rights. But Barkett suggested common sense should have been sufficient notification for McDade. “A reasonable district attorney, or any other reasonable person, would have known that such outrageous conduct constituted sexual harassment,” she wrote. Barkett called the reasoning of her colleagues on the panel “ludicrous.” The ruling by the appeals panel conflicts with U.S. Supreme Court and 11th Circuit precedents, Barkett stated in her dissent. As early as 1978, the Supreme Court wrote that the U.S. Constitution’s equal protection clause confers on public employees a right to be free from gender discrimination, stated Barkett. “Government officials should, of course, be protected when they attempt to constitutionally perform their duties and fail despite their good faith. The court’s holding in this case, however, extends this protection beyond those government officials who make an erroneous judgment call because of unclear legal precedent, to include knowing and deliberate lawbreakers as well.”

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