NEW YORK (Legal Newsline) – It will now be up to a federal appeals court to decide whether a law passed to protect the rights of sexual harassment and assault victims applies to the allegations made by a former Fox News personality.
On June 8, New York federal judge Andrew Carter certified his order that kept the lawsuit of Andrea Tantaros in federal court, where it would be redirected to arbitration if the U.S. Court of Appeals for the Second Circuit agrees with him.
But should the Second Circuit decide the state law passed in response to the #MeToo movement applies to her case, it will be heard in open court in New York state court.
Tantaros had asked Judge Carter to certify his order so she could appeal it quickly.
“Reversal of this court’s opinion & order would end this case and would materially advance the ultimate termination of the litigation,” Carter wrote.
“Reversal would also put Petitioner’s state law claims back in front of New York Supreme Court Judge David Cohen, who is familiar with the complex background and history of this case, which would accelerate the timeline of resolution.”
Andrea Tantaros 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. The defendants removed it to federal court under the Federal Arbitration Act, as a clause in her 2014 contract required sexual harassment claims to be arbitrated.
The #MeToo law came years after the contract, and the fight is over whether it can retroactively void the arbitration clause.
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.
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.