NEW YORK (Legal Newsline) – A former Fox News personality’s sexual harassment fight will remain where it is, thanks to a decision by the U.S. Court of Appeals for the Second Circuit.
Andrea Tantaros wants to pursue her lawsuit against the channel, the estate of former Fox News chief executive Roger Ailes, former Fox executive Bill Shine and others in New York state court, where she can avoid being forced into a private arbitration.
A clause in her 2014 contract required sexual harassment claims to be arbitrated, but a New York law passed in response to the #MeToo movement would prevent that from taking place. She filed suit in state court but the defendants removed it to federal, citing their desire to initiate arbitration under the Federal Arbitration Act.
The Second Circuit ruled on Aug. 27 that the federal judge currently presiding over the case will need to decide whether the FAA applies to her claims, rejecting Tantaros’ plea to send them back to state court.
“We discern no threat to the balance of federal and state responsibilities that weighs against the exercise of federal jurisdiction here,” Judge John Walker wrote in a 2-1 decision.
“The Supreme Court has recognized that the FAA established concurrent federal-state jurisdiction and that ‘state courts have a prominent role to play as enforcers of agreements to arbitrate.’
“The enforceability of a specific arbitration agreement, and the validity of § 7515, are two distinct issues. While the former involves routine application of the FAA, the latter requires consideration of the preemptive impact of the FAA, the scope of the state law, and the extent to which the two may conflict.
“Such questions have precisely the sort of significance to the federal system that supports adjudication in a federal forum. While New York state has a competing interest in deciding the meaning of its own laws, the New York legislature drafted § 7515 clearly mindful of federal law and the possibility that such § 7515 claims may be removed to federal court.”
Judge Richard Wesley dissented in a separate opinion. He suggested passing the question of whether the #MeToo law can defeat the arbitration clause to the highest state court in New York – the Court of Appeals.
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.
State judge David Cohen 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.”
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.