Can an apology prevent an employment lawsuit?

Can an apology dissuade someone from filing a lawsuit against his or her employer?

Based on countless employment disputes I’ve been familiar with, I believe the answer is a resounding “yes.” However, the apology must be a genuine one and, in appropriate instances, include efforts to repair the harm.

Let’s dig a little deeper into what that means.

4 elements of an apology

At the Congress of the International Academy of Law and Mental Health held last week in Berlin, Dr. Monica Broome, director of the University of Miami medical school’s new communications skills center, set out the four elements of an effective apology:

First, acknowledge the wrongful behavior.

Second, explain what occurred, without excusing it.

Third, express genuine remorse.

Fourth, attempt to fix the situation or provide reparations.

Words alone may not be sufficient

In the case of dignitary offenses of a less severe nature, such as milder forms of sexual harassment, an honest expression of acknowledgment and remorse may be sufficient to bring the situation to closure.

However, with more serious transgressions, Broome’s fourth element — compensation or relief — may be necessary to make the apology complete.

Don’t add insult to injury

In any event, lines like “I’m sorry if you feel bad” or “We acknowledge your perception that you were treated badly” only make the situation worse. Pseudo-apologies pour gasoline onto bad feelings.

Legal implications

Of course, the legal implications of an apology that meets Broome’s definition are considerable. In effect, Broome recommends that in cases where wrongful conduct has occurred, the offending party must expressly acknowledge it, accept responsibility, and hold itself accountable.

In legal language, that’s called an admission, and many employers (and their lawyers) are loathe to do so, fearful that the worker will use it against them in litigation. In addition, some employers do not want to appear weak, fearing it will open litigation floodgates — or at least throngs of threatened lawsuits attempting to squeeze a quick, if unwarranted, settlement.

Small risk, huge reward

I think those fears are overstated in the vast majority of situations. Most workers do not want to sue their employers or their former employers or to casually threaten legal process, because they have some idea of what it might entail. (In fact, it’s fair to say that a substantial number of workers who have valid claims against current or former employers choose not to file for that very reason.)

Indeed, once it gets around the building that management has the integrity to admit its mistakes, including wrongful behavior toward employees, its street cred will skyrocket among the rank-and-file.

In short, real apologies can go a long way toward making the workplace less litigious and creating mutual respect among employers and employees. But it takes a high-quality, confident employer to embrace such a philosophy and practice. The bad ones, I’m afraid, will continue to find themselves in court, defending claims that should’ve been settled many moons ago.

***

This post embodies the underlying values of therapeutic jurisprudence (examining how the law and legal practice can promote psychologically healthy outcomes) and of restorative justice (examining the needs of the parties and the importance of responsibility). These schools of thought carry great potential significance for modern employment relations.

8 responses

  1. David, I was apologized to and accepted this in Good FAITH! AS a result of the apology I dropped my complaint! However after I was moved the organization targeted me still as they did not like the fact that I stood up. Hence I had 2 claims against them. To apologize and move me ( which looked good on their behalf) was just a strategy to stop my claim and it worked for a time and to get me later. I am sorry to say this but it turned out to be true! When the abuse continued from peer to mobbing and organizational abuse I reopened the original claim and also did another if which I won first up! This is sad but true. I had an open and shut case of workplace bullying and harassment. I am saying this to let you know that there sometimes is a different aspect to this as well. Yes I agree with the notes of Dr Monica Broome absolutely as long as it is GENUINE! In my case it was not!

  2. Thank you, thank you, THANK YOU for calling foul on the “I’m sorry if you were offended” non-apology. One apologizes for the offensive or injurious impacts of one’s actions, or the actions of those for whom one is responsible (even if inadvertent or unauthorized). One does not put the blame for injury on the injured. It’s cruel, incorrect and downright tacky.

    I see that type of non-apology over and over again in the news. Every time I do, I think less of the apologizing entity than I did when its alleged bad behavior first became public.There’s got to be a better way.

  3. I’ve wondered if adding an “apology does not constitute an admission” clause to workplace abuse legislation might be helpful. In my home state of Oregon (as well as other states), there are statutes along this line regarding medical incidents:

    ORS 677.082 Expression of regret or apology by licensee. (1) For the purposes of any civil action against a person licensed by the Oregon Medical Board, any expression of regret or apology made by or on behalf of the person, including an expression of regret or apology that is made in writing, orally or by conduct, does not constitute an admission of liability for any purpose.

    Anything that might advance a proactive – rather than CYA reactive – response seems more constructive.

    Of course, the intent is lost if (as Alice describes in her comment) an apology is used as a selfish strategy as opposed to a genuine expression of reparation.

    Thanks.
    Debra

    • Debra, it’s an interesting idea, but I wouldn’t advocate it for the Healthy Workplace Bill for this reason: Employers and employees engage in a lot more discussion over employment relations than doctors and patients. The potential evidentiary issues could be significant, with employers doing everything they can to get a statement within the “apology” exception to normal rules of evidence. Also, it is quite foreseeable that you would have nasty employers “apologizing” for their behavior while fighting a lawsuit tooth-and-nail and refusing to provide damages after destroying someone’s livelihood and psyche — a sort of taunting meant to further torture someone. “We’re sorry we destroyed your career, we really mean it, and we’re going to do everything we can not to pay cent for it.”

  4. As always, thanks very much for your thoughts, David.

    I can appreciate the possible downsides – as well as the ever-hovering potential unintended consequences. Yet, I’ve done a fair amount of reading on the topic of early disclosure and apologies in the medical field and still think there might be something there for workplace abuse legislation.

    Apologies for workplace abuse, as with medical errors, could go far beyond a simple clause in a law. It could be the commitment of an organization to a healthier work environment by implementing an employee-centered response to complaints of workplace abuse. I realize that in a mere couple of paragraphs it sounds pretty naive. Still, it’s something I remain interested in and hopeful about.

    For more information on apologies in the medical field, the following website provides some interesting ideas:

    http://www.perfectapology.com/medical-errors.html

    Take care.
    Debra

    • Debra, there’s another perhaps insurmountable problem with that approach: Many employment lawsuits raise multiple claims. For example, if the Healthy Workplace Bill becomes law, it will be possible to bring a claim under that as well as other potential employment actions, such as employment discrimination law and tort law. If the “apology exemption” appears only in the bullying law, it presumably wouldn’t apply for the discrimination and tort claims.

      In other words, what you’d need to make this fair and effective are blanket federal AND state statutes saying that apologies are inadmissible in any employment litigation — a gargantuan legislative task to be sure. Otherwise, if, say, a case involving both bullying and discrimination went to trial, presumably the judge would have to instruct the jury (or herself, in a judge trial), that the apology is to be disregarded as evidence of admission for the bullying claim, but is admissible for the discrimination claim.

      This makes a potential apology exemption in employment litigation much more complicated than in med mal litigation, the latter of which typically raises a negligence claim and stops there.

      In more practical terms, it would mean that without a blanket apology exemption for all employment-related litigation, the potential issuer of the apology would have to be aware of what claims the exemption applies to and what it doesn’t. I can’t imagine anyone wanting to take that chance.

  5. Hi, David –

    I understand and appreciate your comments and the concerns you raise.

    Medical malpractice claims often are brought with other claims, such as intentional or negligent infliction of emotional distress. I don’t know if that’s been an issue in the courts, i.e., if a medical provider apologizes in a state where such apologies are not considered a legal admission of liability for malpractice, can the admission be used against the provider with regard to the claim for infliction of emotional distress?

    I think the premise of your post – and the point I feel is important – is that genuine apologies constitute a significant public policy issue and, therefore, should be supported rather than discouraged. In the employment setting, apologies can open the gates for the dialogue necessary to focus on prevention and remedies, as opposed to blame.

    Hope I’m making sense!

    Thanks.
    Debra

  6. It all makes sense. Yesterday, while speaking with upper management regarding my continued workplace bullying one of the managers was openly upset, chin quivering, teary eyes and gave me a sincere apology for what I had experienced and what I was going thru. I accepted her words with an open heart. That is who I am.

    I will not sue, my motto is to stay out of the courts, where someone’s fate is determined by another. I just want to get the heck out of this place!

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