NEW YORK (Legal Newsline) - A former on-air personality at Fox News will not give up her quest to have her sexual harassment lawsuit heard in open court.
Andrea Tantaros filed a notice of appeal to the U.S. Court of Appeals for the Second Circuit on Oct. 25, about a month after New York federal judge Andrew Carter ruled her claims were subject to arbitration.
Tantaros has argued a New York state law passed after she signed her deal with Fox News voids the arbitration clause, but Carter ruled otherwise.
"In interpreting the Federal Arbitration Act, the Supreme Court has stated that the purpose of the Act is to combat historical hostility toward arbitration agreements, putting agreements to arbitrate on the same footing as any other contract," Carter wrote.'
"Consequently, courts may not invent new procedural rules that favor or disfavor arbitration. Just as the FAA prevents courts from interpreting rules in order to disfavor arbitration, the FAA prevents state legislatures from passing laws that exempt certain claims from arbitration."
The U.S. Court of Appeals for the Second Circuit had ruled the lawsuit belonged in federal court, paving the way for Carter's ruling.
Tantaros wanted to pursue her lawsuit against the channel, the estate of 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 could have prevented 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.
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 claimed it "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," Tantaros' lawyers previously wrote. Arbitration was, in effect, helping to "kill her professionally, emotionally and financially."
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 said 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 arose.