“Getting to Yes” by Way of “I’m Sorry”: Settling Employment Discrimination Claims with Apologies

By Maria C. Walsh

Apologies are difficult.  By expressing regret and accepting responsibility for a harmful act, the person apologizing transfers “power” from him- or herself to the person receiving the apology.  Parties negotiating settlement want all the “power” they can muster, and many fear they’ll convey weakness by apologizing.  Experienced negotiators, however, use apologies to help settle cases.

Most people self-identify as decent, competent and moral.  When accused of illegal employment discrimination, defendants recoil.  They’re not “discriminators”!  Why should they apologize for something they believe they never did?  Moreover, won’t an apology be perceived as an admission of wrongdoing, further emboldening the plaintiff?

Social science research suggests the opposite.  A well-crafted apology can reduce the ultimate price of settlement by communicating empathy and respect to the “victim.”  Studies of adverse medical outcomes reveal that injured patients are less likely to sue, and more likely to settle quickly, when doctors apologize for unintended harm.  Recognizing the value of apologies, more than 34 states have “apology laws” that exclude certain expressions of regret or sympathy from evidence, primarily in the context of medical malpractice cases.

When an employee is involuntarily terminated (other than for an indisputably neutral reason), rarely does he or she agree the termination is justified.  Defense lawyers know, and advise their clients, that employers need not have just cause to terminate (in the absence of a contrary contract).  Most terminated employees, however, facing the loss of professional identity, economic security and workplace community, challenge the validity of any termination decision.

Many employers avoid litigation through effective communication.  They convey appreciation for the employee’s past contributions, express regret for the necessity of the termination and volunteer assistance with the employee’s transition to a new opportunity.  Their communications convey respect for the employee and acknowledge the employee’s value.  The employee, trusting the employer’s action was an unfortunate, but not vindictive, decision, feels little or no animus and can accept the need to move on.

In contrast, employees who are figuratively (or literally) marched out the back door, offered little or no explanation for the reason or timing of termination and/or accused of bad acts tend to think the worst of their employer.  Shame, confusion and disempowerment converge with anger and suspicion.  Trust is destroyed.  The employee disbelieves the employer’s stated reason, concluding that the employer must be hiding an illegal motive.

To continue reading Maria C. Walsh’s discussion, please read the full article, “Getting to Yesⁱ” by Way of “I’m Sorry”: Settling Employment Discrimination Claims with Apologies, from Law.com.