It is undisputed that Karen Ann Shain's boss used to measure her skirt lengths against those of other women in the office. He admits that he called long skirts "Karen length" skirts and used to kid her for not showing any "skin" on either her legs or her neckline. There is no debate that he referred to Shain as naive on several occasions or that he took her on what he called "educating Karen field trips." Once, she says, he took her to Cheesman Park to show her "where men have sex with other men." Shain's boss admits to once watching Shain's daughter grab her mother's dress and commenting, "I couldn't do that."
But to Shain's frustration, she keeps losing her argument that those incidents constituted constant sexual harassment that caused her to quit her job. She says she can't win because the boss she's referring to is Judge Jeffrey Bayless, the Denver District Court judge who reached national fame when he struck down Colorado's anti-gay-rights Amendment 2.
Shain went to work for Bayless in September 1986, when he was first sworn into the Denver District Court. He was 41; she was 27, with six years of experience as a court reporter.
By May 1995, Shain no longer was working full-time for Bayless, and their working relationship had soured enough that she quit her job. The Colorado Department of Labor and Employment disqualified her from unemployment benefits when she first applied in late 1995, saying that she alone was responsible for the "employment separation." Shain appealed the denial in writing, and then later before a Labor Department's unemployment appeal-hearing referee and an industrial-claims appeals board, arguing that ongoing sexual harassment and a "hostile environment" effectively forced her to quit. She has lost all three appeals, and the decision-makers have declined to comment on whether harassment existed. Instead, they have ruled that Shain quit because of changes in her benefits, not because of how she was treated.
"They seem to ignore that harassment need not be the sole cause of the employee's decision to leave," says Shain's lawyer, Robert W. Kesnowski Jr. "I think it's an absolute outrage, some of the things Bayless himself has admitted to doing. I've always considered him a very good judge, and he should clearly know better than to measure someone's skirt. I mean, it's reasonable for us to assume he's aware of the laws and norms of society, considering his position, isn't it?"
Kesnowski says Shain filed a complaint against Bayless with the Equal Employment Opportunity Commission "about a year ago" but it hasn't been ruled upon. A decision on Shain's unemployment-benefits case is expected shortly from the Colorado Court of Appeals.
Bayless and others on his staff won't comment on Shain's allegations. But in testimony at the December 6, 1995, Labor Department hearing, Bayless, when asked whether some of the comments he made to Shain were "inappropriate," replied, "I didn't think they were at the time. I thought they were a part of a give-and-take in a small office where you work very closely together...What I think now is, 'Boy, I wish she had said something. Just anything.'" Bayless went on to say, "I wish she'd said, 'I've got a problem. I don't like this; I don't like that.' Man, I would have--I would have made changes. I would have done whatever."
At that same hearing, Bayless said, "For a number of years she was really good and dependable, but there came a time when she stopped wanting to work." Shain reduced her own hours by hiring another court reporter, Tina Rae Douglas, to work some of her hours. Shain paid Douglas out of her own pocket, a practice that court officials say is common. But Shain says the move backfired when she herself started falling out of favor. Bayless testified that when Shain wound up working "less than half-time, I couldn't depend on her." He added, "So I was in the situation that I had one reporter I could depend on--Tina, who was not on the payroll, not getting benefits, and she's the one I had to rely on."
Early on, there was no hint of estrangement between boss and employee. Bayless acknowledged that he set out to "educate" Shain in what he called the real world: He took her and the rest of his personal staff on what he'd call "educating Karen field trips." According to Bayless's own testimony, these field trips started "right at the front, when I was first sworn in as a judge." In testimony before the hearing referee, Bayless described the rationale behind them: "I explained to my staff that we would be working so closely together that we'd probably spend more time together than they may with their own family members. And, we would be in kind of a pressure-packed environment. There would be some times that we would be trying just awful cases; rapes, murders, that sort of thing, and I wanted to get away from that environment and talk. And I wanted to have a situation that they could feel free to talk about, to get away from the pressures and everything that happens around the court, [a way to] get away from the phones and talk about issues that needed to be talked about." He explained that after particularly stressful or gruesome cases, he'd take the entire staff to the scene of the crime, to show them the environment in which these crimes occurred.
"We don't do it when a case is going on," Bayless testified. "It would have a bad appearance. But after a case is over, in the projects, a knifing or a drug sale, then we'd go in, look...And we would go to East Colfax and I would show, 'This is East Colfax. This is--this is what this is about, and this is how these women were victimized.' And I would call it education. And I still don't think education is a bad thing."
He named the excursions after her, Bayless testified, "because she was the one who had expressed that she didn't believe--didn't understand that these sort of things took place in Denver."
And, the judge emphasized, "not once, never," did Shain tell him that she was embarrassed or uncomfortable with the field trips.
The judge also testified that he did measure Shain's dresses and skirts at times. But Bayless said he was using Shain's modest attire as a good example to other women on the staff.
Bayless also admitted to making a remark about not being able to grab Shain's dress the way her three-year-old did. "Yeah, I said that," Bayless testified. The judge denied making comments about helping Shain adjust her bra strap, but he did recall making bra-adjustment comments to other members of the staff, including a deputy clerk "who sometimes would just quite visibly reach in and do that with her bra strap."
Shain acknowledges that she did not complain to Bayless about his behavior, but she says that was only natural, considering her disposition. "He thinks it's okay because I didn't say anything about it," she says. "But I'm just a quiet person; I didn't voice my opinion to anyone. I cried a lot at home, though."
She told the hearing referee that the field trips, the judge's frequent discussions about her naivete and constant comments about her dress length and her conservative necklines took a toll on her.
"It was the way they treated me," she told the referee, "[They said] that I'm so stupid. [That] I lead a sheltered life is another thing that [Bayless] would talk about. That I grew up in Arvada and that I grew up in a sheltered life and I'm going to bring my kids up the same exact way.
"I now live in Highlands Ranch, and he'd always make fun of that, too, that it's just such a sheltered place away from all the bad things that happened."
But the bad things in her life, Shain insists, were happening in the office. She accuses Douglas, the woman she herself hired to fill in for her, of a power play.
"I paid her directly," Shain says. "I was naive enough to think she wouldn't try to steal my job." But according to Shain, that's exactly what Douglas did. Bayless has testified that Shain's demeanor changed when he insisted that Shain stop paying Douglas directly and allow her to be brought on the court payroll and get half of Shain's benefits.
Nevertheless, Bayless insisted that Shain was not forced out. He told the hearing referee: "She had suggested to you she was about to be fired. That was not true. I was never going to fire Karen."
Shain is unconvinced. "I've seen the way they treat people before they fire them," she says, "and I knew they were going to fire me."
That fear, together with the years of what she considers ongoing abuse, says Shain, finally came to a head on May 23, 1995, when she walked out of Denver District Court forever.
A year later, she doesn't have a job and says she has had to sell her transcription computer and its software because she couldn't afford the payments.
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"I haven't heard anyone say it's not my fault," she says. "The unemployment office didn't believe me. No one will talk to me because of who he is. It was hard even trying to find an attorney to talk to because of who the defendant was. No one cares."
Shain says she tries to get angry at the judge--"He wouldn't even say good morning," she recalls. "He'd just measure my dress, and all the others would like to laugh at me. That was the extent of our relationship"--but it is easier to feel anger with herself and with her most obvious competition, Tina Rae Douglas. "He wanted to fire me because he liked Tina more than me," Shain says. "She knew more about his personal life in that short time she was there than I'd ever known. He had a dog that died, and I didn't know it--he never talked to me, ever."
Those memories provoke tears from Shain, and she says, "It all goes together with my own low self-esteem. I'm self-conscious about my legs and generally have a low opinion of myself." And, Shain says, that isn't news to Bayless. In fact, she says, it's one reason he does it--"because he knows he can get away with it."
"My mother was abused by her second husband. We're just the kind of personality that lets people walk all over them.