This Public Statement is issued in response to reports that a group of probationary New York City police officers have been advised that they may be “allowed” to remain employed only if they agree to a negotiated settlement waiving their legal rights. These reports arise in the context of ongoing litigation and time-pressured meetings scheduled with union representatives.
This statement is not individualized legal advice. Its purpose is to ensure that affected officers, their families, and the public understand the legal framework governing their rights before any irrevocable decisions are made.
What follows is a summary of the principal federal, state, and local legal protections implicated by these circumstances.
I. Title VII of the Civil Rights Act of 1964
Under Title VII, public employers are prohibited from discriminating or retaliating against employees on the basis of race, sex, or other protected characteristics. Title VII also prohibits the use of employment practices that have an unlawful disparate impact on protected groups unless those practices are job-related and consistent with business necessity. Griggs v. Duke Power Co., 401 U.S. 424 (1971).
Where an employment action disproportionately affects officers of color and women, heightened legal scrutiny is triggered as a matter of law. Conditioning continued employment on the surrender of civil rights—particularly where the affected group is demographically uniform—raises serious concerns under Title VII’s anti-retaliation and disparate impact provisions.
Psychological screening, post-hoc “qualification” reviews, and background re-evaluations are employment selection devices governed by the Uniform Guidelines on Employee Selection Procedures (UGESP), 29 C.F.R. Part 1607. UGESP requires that such devices be validated, job-related, and consistently applied. Unvalidated or unlawfully administered screening processes do not insulate an employer from liability; they expand it.
A waiver executed under threat of termination does not eliminate Title VII scrutiny, particularly where the underlying employment action itself is actively disputed.
II. 42 U.S.C. § 1983 — Constitutional Protections
Under 42 U.S.C. § 1983, government actors may not deprive individuals of constitutional rights under color of law.
Publicly characterizing employees as “unqualified,” “improperly hired,” or associated with alleged misconduct—while simultaneously threatening termination unless they waive their rights—implicates constitutional liberty interests, including reputation and future employability. Where such stigma is imposed without a meaningful opportunity to be heard, due process concerns arise. Codd v. Velger, 429 U.S. 624 (1977); Segal v. City of New York, 459 F.3d 207 (2d Cir. 2006).
Government employers are also prohibited from retaliating against individuals for protected activity or protected association. Conditioning continued public employment on the execution of a release of constitutional claims is subject to heightened judicial scrutiny, far beyond what applies in private employment. The government may not deny a benefit on a basis that infringes constitutionally protected interests. Perry v. Sindermann, 408 U.S. 593 (1972).
A negotiated settlement cannot lawfully be used to purchase immunity for unconstitutional conduct.
III. New York State Human Rights Law (NYSHRL) — Post-Amendment Standards and Judicial Enforcement
The New York State Human Rights Law, Executive Law § 296, was substantially amended to expand protections against discrimination and retaliation and to reject the restrictive federal standards that had historically narrowed its reach. As amended, the NYSHRL must be construed liberally to accomplish its remedial purposes, regardless of whether comparable federal civil rights laws have been so construed. Executive Law § 300.
Courts applying the post-amendment NYSHRL have expressly recognized that these changes lowered the threshold for actionable discrimination and retaliation. In Golston-Green v. City of New York, 184 A.D.3d 24 (2d Dep’t 2020), the Appellate Division confirmed that the amended statute requires an analysis independent of federal law and must be applied expansively in favor of claimants. Federal courts have reached the same conclusion, holding that the amendments eliminate the federal “severe or pervasive” standard and permit liability where an employee is subjected to inferior terms, conditions, or privileges of employment because of a protected characteristic. Arazi v. Cohen Bros. Realty Corp., 2022 WL 912940, at *7–8 (S.D.N.Y. Mar. 28, 2022); Maiurano v. Cantor Fitzgerald Secs., 2021 WL 76410, at *3 (S.D.N.Y. Jan. 8, 2021).
The post-amendment NYSHRL also broadened the retaliation standard. An employee need only show that the employer engaged in conduct reasonably likely to deter protected activity; no materially adverse employment action is required. Wellner v. Montefiore Med. Ctr., 2019 WL 4081898, at *5 (S.D.N.Y. Aug. 29, 2019). Under this framework, pressuring employees to choose between continued employment and the surrender of civil rights—particularly in a time-compressed and coercive setting—is subject to close judicial scrutiny.
With respect to waivers, New York courts continue to require that any release of statutory rights be knowing and voluntary, and free from fraud, duress, or material misrepresentation. Bormann v. AT&T Commc’ns, Inc., 875 F.2d 399 (2d Cir. 1989); Livingston v. Adirondack Beverage Co., 141 F.3d 434 (2d Cir. 1998). Where a waiver is procured under threat of termination, based on disputed assertions of “disqualification,” or amid pending litigation challenging the employer’s conduct, its enforceability is highly suspect—particularly under the NYSHRL’s expanded remedial mandate.
Probationary status does not exempt a public employer from compliance with these obligations.
IV. New York City Human Rights Law (NYCHRL) — Independent, Expansive, and Hostile to Coercion
The New York City Human Rights Law provides the broadest civil rights protections available and must be construed independently and liberally to accomplish its uniquely remedial purposes. Administrative Code § 8-130(a). Courts have repeatedly emphasized that NYCHRL claims must be analyzed separately from their federal and state counterparts and may survive even where other claims fail. Williams v. NYC Hous. Auth., 61 A.D.3d 62, 66–69 (1st Dep’t 2009).
Under the NYCHRL, retaliation is defined broadly to include any conduct reasonably likely to deter a person from engaging in protected activity, regardless of whether the conduct results in a tangible employment action. Albunio v. City of New York, 16 N.Y.3d 472, 479–80 (2011); Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 112–13 (2d Cir. 2013). Time-pressured ultimatums, coercive settlement demands, and conditioning continued employment on silence or waiver of rights fall squarely within the type of conduct the NYCHRL was designed to prohibit.
The NYCHRL also mandates a plaintiff-protective burden-shifting framework. Once discrimination or retaliation plays any role in the employer’s conduct, liability may attach unless the employer can prove that discrimination played no role whatsoever. Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 34–35 (1st Dep’t 2011).
Waivers under the NYCHRL are construed narrowly, and courts are instructed to examine not only the language of a release but the circumstances under which it was obtained. Chin v. New York City Hous. Auth., 106 A.D.3d 443 (1st Dep’t 2013); Velazco v. Columbus Citizens Found., 2019 WL 4865830, at *6 (S.D.N.Y. Oct. 2, 2019). A release demanded by a public employer under threat of termination, probationary manipulation, or reputational harm does not shield that employer from liability for discrimination or retaliation under the NYCHRL.
Finally, the NYCHRL imposes aiding-and-abetting liability on individuals who participate in or facilitate discriminatory or retaliatory conduct. Feingold v. New York, 366 F.3d 138, 158–59 (2d Cir. 2004). This includes supervisors, decision-makers, and others who play a role in pressuring employees to relinquish protected rights.
Under the NYCHRL, a public employer may not accomplish indirectly—through negotiated waivers or union-mediated pressure—what it is prohibited from doing directly under the law.
V. The Central Legal Contradiction
Officers are reportedly being told two things at once:
That they were never legally qualified and should not have been appointed; and
That they may remain employed if—and only if—they waive their right to sue.
Those positions are legally incompatible.
If the City is willing to retain them conditionally, that fact raises serious questions as to whether ‘qualification’ is the actual issue—or whether liability avoidance is driving the decision-making.
Courts do not ignore such contradictions when assessing coercion, pretext, and voluntariness.
VI. Pending PBA Litigation
These issues are not hypothetical.
The Police Benevolent Association of the City of New York has commenced an Article 78 proceeding in the Supreme Court of the State of New York challenging the City’s actions relating to alleged improper appointments, retroactive disqualifications, and the procedures used to effectuate those determinations. The City has appeared and answered. No court has adjudicated the merits, and no final determination has been issued.
Accordingly:
The lawfulness of the City’s actions is actively disputed;
The City’s factual narrative is not judicially established;
The rights of affected officers remain unresolved and preserved.
Any effort to condition continued employment on the execution of waivers while this litigation is pending raises additional concerns regarding coercion, voluntariness, and interference with statutory and constitutional rights.
VII. A Final, Critical Point
No union, association, or employer can waive an individual officer’s civil rights on their behalf. No officer should be rushed into signing any document without understanding:
what rights are being surrendered,
what claims cannot be waived,
and what legal exposure may continue regardless of any signature.
Seeking independent legal counsel before signing anything is not disloyalty. It is protected conduct.
Conclusion
Public employment does not require the surrender of constitutional or civil rights. Waivers obtained through pressure, misinformation, or fear are legally vulnerable and do not erase the underlying law.
If the City’s actions were lawful, informed consent—not urgency and silence—would suffice.
This statement is issued so that no officer can later be told they “should have known.”