NEW YORK (Legal Newsline) – Once rejected, a former Fox News presenter is not quitting in her effort to have her sexual harassment claims against the network heard in a state court.
Andrea Tantaros has asked federal judge Andrew Carter, of the Southern District of New York, to certify his December decision that keeps her case in federal court so that she can appeal it to the U.S. Court of Appeals for the Second Circuit. Should the case stay in federal court, it appears likely to head to arbitration.
Tantaros originally sued the estate of former chief executive Roger Ailes, former Fox executive and White House deputy communications chief Bill Shine and others in a New York state court.
A New York statute introduced in the aftermath of the #MeToo movement bars mandatory arbitration in sexual harassment claims, she argues as she attempts to have her case heard instead in open court.
“If mandatory arbitration of sexual harassment claims is unconscionable under New York law, (New York law) would not be preempted by the (Federal Arbitration Act),” Tantaros’ lawyers wrote in February.
“It permits nonenforcement of arbitration agreements on ‘such grounds as exist at law or in equity for the revocation of any contract.’”
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.
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.
Fox News and the other defendants will file a motion to dismiss by May 22. After briefing, Judge Carter will determine whether to dismiss the case or certify his remand order so Tantaros can appeal it.
From Legal Newsline: Reach editor John O’Brien at john.obrien@therecordinc.com.