Andrea Tantaros Takes Harassment Claims Against Fox News to Appeals Court

Andrea Tantaros -Getty-P 2016
Desiree Navarro/WireImage

Andrea Tantaros, the Fox News anchor who targeted ex-chief Roger Ailes for alleged sexual harassment and other executives at the company for retaliation, is moving her case to an appeals court. On Friday, her attorney Judd Burstein filed notice with the court and outlined arguments.

On Feb. 15, New York Supreme Court Justice David B. Cohen ruled that Tantaros' claims were covered under the arbitration clause of her employment contract. The ruling was overshadowed by word at the hearing that Fox was being investigated by the government in connection with Ailes-related activity, but the outcome was ultimately a defeat for Tantaros, who in a complaint alleged that Fox News "operated like a sex-fueled, Playboy Mansion-like cult, steeped in intimidation, indecency, and misogyny."

Besides deciding to honor a "valid, broad and unambiguous" arbitration clause that required that any controversy arising out of or related to employment should be put to a three-member arbitration panel, Cohen also ruled that individual defendants including Ailes' replacement Bill Shine, executive vp legal affairs Dianne Brandi, executive vp corporate communications Irena Briganti, and executive vp programming and development Suzanne Scott could invoke the arbitration clause as well.

"A careful review of the claims against the individual defendants shows that these claims are factually intertwined with the agreement and the claims against Fox News," said the judge at the hearing.

In a pre-argument statement, Burstein writes, "This ruling ignores well-settled case law holding that, as creatures of contract, the scope of arbitration clauses are governed by the plain language of the contract and the parties' intent. Here, there is no language in the arbitration clause that expressly includes sexual harassment and retaliation claims, and there is no evidence that either Ms. Tantaros or Fox News intended such claims to be subject to arbitration."

Judge Cohen also rejected Tantaros' argument that Fox News had waived arbitration by violating the contract's confidentiality obligations by telling the press it had initiated arbitration proceedings with Tantaros. At the hearing, Cohen said, "That claim is without merit as the defendants have not engaged in protracted litigation that prejudiced the plaintiff. In any event, it was plaintiff who first invoked the news media in this dispute ..."

Burstein writes that the judge here "expressly ignored documentary evidence ... that refute this claim" and "there is nothing in the record as to what those obligations were because neither Ms. Tantaros nor any of the Defendants included the agreement's confidentiality provisions as part of their submissions."

Finally, Tantaros' attorney is also challenging whether the executives who weren't party to the contract can escape litigation in open court. He asserts they "lack standing to compel arbitration" and had Fox News intended for its employees to be entitled to such rights, the contract would have made that clear.