Andrea Tantaros, former co-host of Fox News’ The Five, has done just about everything to bring her battle with Fox News into open court. On Monday, she attempted something new and well worth watching: She’s seizing upon a law enacted last year by New York lawmakers that ostensibly prevents sexual harassment claims from being arbitrated.
In April 2018, Gov. Andrew Cuomo signed the law — Section 7515 of the Civil Practice Law and Rules — into effect. The move was hugely influenced by Gretchen Carlson’s lawsuit against Fox News’ Roger Ailes, which before being settled, raised the prospect that she’d be forced into arbitration. The #MeToo movement sparked similar anti-arbitration statutes around the nation, but those have gone largely untested thus far.
Tantaros alleges that she was subjected to demeaning comments about her body from Ailes, given a “graveyard” on-air time slot when she rebuffed his advances, and also experienced sexual harassment from former Fox News host Bill O’Reilly. In February 2017, a New York judge threw her lawsuit to arbitration, an event that was overshadowed when her attorney at the time blabbed in open court about a federal investigation of how Fox had handled sexual harassment claims against Ailes. She subsequently attempted a racketeering suit against Fox for surveilling and stalking her, but that was unsuccessful, too.
Now, Tantaros is back in court.
She’s seeking to stop arbitration with a petition (see here) in New York state court.
“Section 7515 is to mandatory arbitration of sexual harassment allegations or claims what Brown v. Board of Education was to racial discrimination,” writes her lawyer. “Section 7515 recognizes that female employees are no more equal in resources and bargaining power in arbitrating sexual harassment claims against their employers than separate black schools were equal to separate white schools during Jim Crow. There must be a level playing field.”
Tantaros says the 3-year-old arbitration has forced her to spend over seven figures after being professionally sidelined.
“There is still no light at the end of the tunnel for Ms. Tantaros,” continues the petition stuffed with literary allusions. “Without explanation, the Panel has refused to allow even the scheduling of depositions. They have not ordered the parties to set a stipulated schedule for hearings. The Panel has frozen the action in time like a petrified forest, making Charles Dickens’ infamous Jarndyce v. Jarndyce in Bleak House seem speedy in comparison. Meanwhile, Petitioner is suffering irreparable harm to her career, reputation, and finances as Fox pursues her with the relentlessness of Captain Ahab and with money to burn. No wonder New York passed CPLR section 7515….”
Section 7515 makes “null and void” any contract provision that requires “mandatory arbitration to resolve any allegation or claim of an unlawful discriminatory practice of sexual harassment.”
But, and this is a very big but, it’s questionable whether state lawmakers achieved much of anything.
That’s because Section 7515, along with other state statutes, may take a backseat to the Federal Arbitration Act. Indeed, on June 26 in what appears to be the first decision on this topic, a New York federal judge ruled that 7515 was preempted when analyzing a discrimination and harassment suit against Morgan Stanley. “The FAA’s policy favoring the enforcement of arbitration agreements is not easily displaced by state law,” wrote the judge.
This is just one solitary decision, so Tantaros has hope that courts may agree with her that lawmakers merely codified the proposition that arbitration provisions in contracts are unconscionable for victims.
Ultimately, the controversy over whether states can impede sexual harassment arbitration may be tackled at the appellate level (that is, if Congress doesn’t amend the FAA first).
Last October, the U.S. Supreme Court decided in Lamps Plus to enforce an arbitration agreement against an employee who hoped to lead a class action against his employer over a data breach. Writing for the four liberal justices in dissent, Ruth Bader Ginsburg explicitly nodded to Section 7515 as ameliorating some of the harm from the decision. “[S]ome States have endeavored to safeguard employees’ opportunities to bring sexual harassment suits in court,” she wrote. “These developments are sanguine, for ‘[p]lainly, it would not comport with the congressional objectives behind a statute seeking to enforce civil rights…to allow the very forces that had practiced discrimination to contract away the right to enforce civil rights in the courts.”
As the composition of the Supreme Court currently stands, that opinion may not be able to attract a majority. It’d probably be ironic if Section 7515, born out of the Roger Ailes affair, eventually falls upon the urging of Fox News.
A statement from Fox News reads, “Due to pending litigation, we will reserve our comment for the court system, through which we will fight this baseless petition.”