2nd Circuit: Harassment claims against Fox News belong in federal court

August 29, 2021

Former Fox News host Andrea Tantaros’ claim that her bid to keep sexual harassment allegations against the network out of arbitration belongs in state court was rejected by a federal appeals court on Friday, saying that a federal judge must first decide whether the claims can be arbitrated under federal law.

Tantaros’ harassment allegations against late Fox News CEO Roger Ailes and other persons are brought under New York state law, according to a 2-1 decision by the 2nd U.S. Circuit Court of Appeals.

In the aftermath of the #MeToo movement, a 2019 New York law prohibits mandatory arbitration of sexual harassment and discrimination cases, “save where federal law prohibits it.” According to the 2nd Circuit majority, this compels federal courts to evaluate whether a dispute must be arbitrated under the FAA from the start.

According to Tantaros’ lawyer, Bruce Fein, the ruling effectively prevents New York state courts from implementing a 2019 statute intended to assist discrimination victims.

In an email, Fein said that employers accused of harassment and retaliation “will be able to remove cases involving all forms of discrimination to federal court as a tactic to forum shop, causing costly delay and undue burden on victims and denying plaintiffs their rightful choice of forum to have their claims heard.”

“After five years of litigation and seven different sets of lawyers, Andrea Tantaros has yet to progress her bogus claims,” Fox News said in a statement. We are going to file a motion to dismiss her case.” Kirkland & Ellis and Jones Day represent the New York-based network.

Tantaros alleged in a 2016 state court lawsuit that she was fired from Fox News in punishment for rejecting Ailes’ advances and complaining to top executives at the network, including former co-president William Shine. She claimed that Ailes had made repeated comments about her beauty and that the network “runs like a sex-fueled, Playboy Mansion-type cult.”

Fox News and Roger Ailes, who died in 2017, have both denied wrongdoing.

The complaint was transferred to arbitration by a state judge in 2017, citing an arbitration agreement Tantaros had signed with the network.

Tantaros filed a petition in state court in 2019 after New York’s mandatory arbitration prohibition went into force, seeking an injunction to prevent her claims from being arbitrated further.

The lawsuit was taken to federal court by Fox News.

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