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.