NEW YORK (Legal Newsline) – Fox News is arguing that a law passed during the #MeToo movement does not apply to a former contributor’s sexual harassment lawsuit.
On May 22, Fox News moved to dismiss the action filed by Andrea Tantaros, who originally sued the estate of former Fox News chief executive Roger Ailes, former Fox executive and White House deputy communications chief Bill Shine and others in a New York state court.
She wants a New York law that requires sexual harassment claims be heard in open court, rather than a closed arbitration proceeding, to apply and is fighting to have her case sent back to state court.
Defendants transferred the case to federal court under the Federal Arbitration Act.
(I)n her quest to change the arc of the proceedings by seeking a new forum, Tantaros asks this Court to do precisely what the Federal Arbitration Act forbids – apply a state law so as to invalidate an agreement to arbitrate a particular type of claim,” Fox News’ motion says.
“Not only would this blatantly violate the FAA and decades of United States Supreme
Court precedent, it would also be an affront, in multiple ways, to the very state statute on which she relies, New York Civil Practice Law and Rules § 7515.”
Tantaros, a former co-host of "The Five," first claimed 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 says the New York #MeToo law only applies to contracts entered into after July 11, 2018 – four years after she signed hers, and that she was required to object to arbitration within 20 days after the grounds for invalidity arise.
“Exhibiting the type of gamesmanship that state law forbids, Tantaros sat on her ill-conceived escape strategy for more than a year after Section 7515’s passage and springs it only now when she perceives that the arbitration is not proceeding to her advantage,” attorneys for the network wrote.