Reconsider Never Having To Say ‘I’m Sorry’
By Jathan Janove
Conversations with employment lawyers, case law research and my own experience all suggest that employers and managers frequently overlook an apology as a means of preventing or resolving employment claims. One reason? A court or a jury may deem an apology to be an employer’s admission of fault or liability. But the extent of that risk appears to be greatly overstated. While apologies occasionally contribute to employer liability, most of those cases involved botched apologies. Employers’ acknowledgments
of an employee’s suffering, apologies for miscommunications or misunderstandings, or expressions of regret over the effect of their decisions generally have not been deemed admissions of liability.
At the same time, an employer’s failure to apologize often fuels the employee’s anger. Both plaintiffs’ and defense attorneys describe situations where they could have settled lawsuits quickly and cheaply—or averted them entirely—if the employer had
acknowledged some responsibility for the consequences of its actions. In fact, an employer’s genuine apology frequently helps to resolve a case for much less money than plaintiffs initially demanded—or sometimes for no cash at all, says plaintiffs’ attorney Lauren Scholnick of Strindberg, Scholnick & Chamness in Salt Lake City. “Our clients, generally, just want to feel that someone heard them and will take responsibility for what happened to them,” Scholnick says. “If the employer apologizes before there is even a
legal proceeding of any type, the average employee won’t even make an appointment to see me.”
Just as important as saying the words “I’m sorry” is the approach taken to apologies in the workplace. Here are some rules to follow:
1. Don’t justify or excuse. Have you ever been on the receiving end of an apology that began: “I apologize but …”? Not very satisfying, was it? The case of Mackenzie v. Miller
Brewing Co. demonstrates how that kind of apology can backfire. According to the findings of the trial court, a Miller Brewing employee described an episode of the TV show “Seinfeld” to a co-worker. In the episode, Jerry Seinfeld couldn’t remember his girlfriend’s name, and was puzzled when she commented that her name rhymed with a female body part. Her name was Dolores, and the employee pointed out the rhyming body part to the co-worker in a dictionary to emphasize the punch line.
The co-worker complained to a company officer, who attempted to have the employees resolve the issue themselves. The employee did apologize but expressed surprise that the co-worker could have been offended. Not surprisingly, this “apology” was more upsetting to the co-worker than the original offense. She complained again, and Miller Brewing discharged the employee. He, in turn, sued both Miller and the co-worker, and obtained a jury verdict of more than $26 million. After years of appellate litigation, the award eventually was overturned. This case demonstrates why management should structure and script any apology it becomes involved with. Simply hoping that the two parties in conflict will work things out by themselves can be dangerously naive.
2. Don’t force an apology. A Las Vegas defense attorney recalls a case in which an
employee complained to management about her supervisor screaming profanities at her in front of co-workers, which frightened and humiliated her. After confirming the employee’s account by means of an investigation, management told her it would force the offending supervisor to apologize. The supervisor apologized—reluctantly and
unhappily—in the HR manager’s office. The employee had not requested and did not appreciate the apology, and it became the centerpiece of a lawsuit in which the employee obtained a jury verdict of more than $400,000 against the employer and more than $50,000 against the supervisor.
This doesn’t mean that management cannot require an employee who has violated the company’s anti-harassment policy to apologize as a condition of continued employment. But the employer should ensure that the offending employee is prepared to commit not only to harassment-free behavior in the future but also to owning responsibility for both the current problem and its solution.
3. Identify undisputed points. How can an employer apologize sincerely to an employee
whose own misbehavior contributed to an unpleasant outcome—or where the employer
needs to preserve a legal defense? Identify and apologize for aspects of the situation you don’t necessarily dispute. None of the apologies below admit fault or legal liability, but
they do display the decision-maker’s empathy and humility:
; You could tell a discharged employee: “I believe I communicated job
expectations, and I’m sorry if they weren’t clear to you or if you found them
confusing.”
; For an employee dissatisfied with the result of an internal investigation: “I
understand you feel highly offended by John Doe’s behavior. I’m sorry that our
investigation was unable to substantiate your allegations, and I understand that
also is upsetting to you.”
; For the employee denied a promotion: “I understand that you feel we made a
mistake in choosing Jane instead of you, and that you feel you are the most
qualified person for the position. I know this is upsetting to you, and I’m sorry for
that. We try to make the best choice we can under the circumstances. If it turns
out we made a mistake, I apologize.”
4. Help resolve existing claims. Even after a claim is filed, a well-timed and well-
phrased apology sometimes can resolve it. When they are part of settlement negotiations or mediation conferences, apologies sometimes can be phrased more candidly than otherwise because courts usually will deem them to be privileged under federal or state law. That is, a party cannot use an apology made in this context against an opponent in the event the claim does not settle. Moreover, an employer typically can include an apology as a term of the actual settlement while at the same time expressly denying liability. The apology can be phrased in a way that does not create ammunition for other disgruntled employees.
5. Vet apologies with counsel and insurance providers. A note of caution for
employers with employment practices liability insurance (EPLI)—especially involving
apologies outside the settlement privilege: Have both legal counsel and your EPLI representatives review them in advance. Most policies contain language prohibiting an employer from taking any act that might “prejudice” defense of the claim. Violation of that provision could cause loss of coverage. If the employer or counsel adequately explains the nature of the apology, many insurance representatives will support actions that help settle the case quickly and cheaply. Indeed, one senior attorney for a major national EPLI carrier observed that although insureds must treat the “prejudice” issue
with care, his own prior experience as a plaintiffs’ employment attorney taught him the strong correlation between an employer’s apology and avoidance or early resolution of claims.
Apologies aren’t risk-free. Rather, when problems surface internally, or even when they spill over into agency or court proceedings, employers should neither overlook nor summarily reject the notion of an apology as a tool to prevent or to resolve claims cost-effectively.
Jathan Janove is a partner in the law firm of Bullard Smith Jernstedt Wilson, with offices in Portland, Ore., and Salt Lake City. The author of Managing to Stay Out of Court: How
to Avoid the 8 Deadly Sins of Mismanagement (SHRM, 2005), he defends employers and
provides coaching and training to prevent claims and improve management practices. He thanks his law firm colleague attorney Peter Meyers for assisting with the research and
analysis underlying this article. Author’s Note: This article is not intended as legal advice. For specific situations, consult qualified employment law counsel.
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