NEW YORK (Legal Newsline) – A former Fox News presenter is seeking to move her sexual harassment claims against the news channel back into state court, arguing a New York statute introduced in the aftermath of the birth of the #MeToo movement bars mandatory arbitration of the allegations.
Andrea Tantaros - in a dispute with Fox News, the estate of former chief executive Roger Ailes and other individuals, including one-time White House deputy communications chief Bill Shine - is fighting an attempt to remove the issue to federal court. Shine is a former Fox executive. The defendants removed the case to the U.S. District Court for the Southern District of New York from New York County Supreme Court.
In her filing asking the state court to oversee her claims, Tantaros cited section 7515 of the Civil Practice Law and Rules (CPLR), which was enacted in April 2018, in support of her argument to scrap the arbitration proceedings.
The statue makes "mandatory arbitration provisions in employment contracts governing sexual harassment— a species of unconscionability — null, void and unenforceable," according to the Aug. 5 Tantaros petition to the U.S. District Court for the Southern District of New York.
This was in response to the defendants filing a motion with the federal court asking it to decide whether her argument has merit. The defendants argue that the federal court has jurisdiction because the action is covered by federal statutes.
The filings in both state and federal courts are the latest of the legal battles among Tantaros, a former co-host of "The Five," the channel and its former executives that stem from the television presenter first claiming sexual harassment in 2016.
She alleges the late Ailes made disparaging comments about her body, made sexual advances towards her and banished her to a "graveyard" on-air time slot when she rejected him. Tantaros also alleges she was sexually harassed by former Fox News personality Bill O'Reilly, according to court filings and news reports, including by the Hollywood Reporter.
State Supreme Court Justice David B. Cohen ruled in January 2017 that the mandatory arbitration clause in Tantaros' 2014 contract was valid and covered by the Federal Arbitration Act. The argument over whether the action should be returned to open court is likely to turn on whether the federal act supersedes any state statute.
He tossed the case to the American Arbitration Association, where Tantaros claims it has "idled for more than three years with no depositions or hearings scheduled," according to a July motion.
The arbitration process is designed to "silence" her repeated, documented complaints of sexual harassment, retaliation and workplace hostility," the motion states. Arbitration was, in effect, helping to "kill her professionally, emotionally and financially," it is alleged in the motion.
After her harassment claim was removed to arbitration, Tantaros filed a separate lawsuit against Fox News claiming she was the subject of harassment by surveillance, including the wiretapping of communication devices.
A federal court ruled in favor of the cable news channel, with the judge finding that the plaintiff failed to articulate an actual claim her communication was intercepted and describing the action as one "based primarily on speculation and conjecture."
In her petition to the federal court to remand the action to state level, Tantaros argues "The suit is assigned to the same Justice Cohen who earlier decided respondents’ motion to compel arbitration in their favor by dint of the Federal Arbitration Act.
"Fearful of losing before Justice Cohen, respondents have resorted to classic forum shopping....based on a preposterous theory of federal question jurisdiction....that would threaten a tsunami of copycat removals and disrespect," the petition states.