Non-Apology Apologies, Part 2

It seems that there are a lot of stories about questionable apologies in the news lately.  I don’t intend to discuss all of them, but here are a few more thoughts about some of them.

21st Century Fox

First, some updates about the 21st Century Fox apology.  I thought it was bland but some commentators, like this one, thought it was stunning, even “extraordinary.”  The reason she was so impressed is that defendants rarely apologize in sexual harassment cases, illustrating Professor Jonathan Cohen’s point I mentioned in my original post.  So it’s not that this was a stunningly good apology.  Rather, it was stunning because corporate defendants that have done wrong almost never acknowledge their wrongdoing.

The $20 million settlement with Ms. Carlson and the $40 million severance package for Mr. Ailes probably seem like a lot of money to you and me.  But to Fox (which earned $8.3 BILLION in net income last year),  these payments are mere “rounding errors”  (less than 1% of the net income), according to a plaintiff’s lawyer quoted in the commentary.

Fox News personality Geraldo Rivera issued an apology of sorts for initially dismissing Ms. Carlson’s claims.   In a Facebook post, he wrote that he is “filled with regret” about his statements about her and others who made allegations against Mr. Ailes.  He also apologized to reporter Gabriel Sherman, who doggedly investigated Mr. Ailes and Fox News for several years.

I think that Mr. Rivera’s apology is less than satisfying for two reasons.  First, he complained that it was unfair for other news organizations to continue to “report, repeat and regurgitate every detail in this melancholy saga.”

This view seems hypocritical for a reporter, especially considering the major significance of this story and the fact that Fox quickly settled with Ms. Carlson and others precisely to prevent disclosure of important facts.  The non-disclosure of information about the case is aggravated by Fox’s aggressive use and enforcement of confidentiality agreements.  This story is particularly newsworthy because of the prominence of Fox and Mr. Ailes in the media and politics.  There is evidence that Mr. Ailes repeatedly harassed employees over a long period of time, threatening retaliation against anyone who complained.  This is a case of serious wrongdoing – to the tune of $20 million – and the public deserves to know more about what actually happened and what individuals were responsible.

Mr. Rivera also stated that he lost a book contract due to his “relatively flattering” portrayal of Mr. Ailes in a draft of the book.  It is understandable that this loss would prompt some serious reflection.  But it raises doubts about how he would have reacted if his statements hadn’t cost him anything personally.

Wells Fargo

Wells Fargo provides another example of a corporate non-apology.  It created thousands of “sham accounts” over a period of years.  Following investigation by prosecutors and regulators, it refunded money to customers and paid a substantial fine, as described by the New York Times.

“Wells Fargo was flowing with regrets on Friday, taking out ads in nearly a dozen newspapers saying the bank took “full responsibility” for creating sham bank accounts without its customers’ permission.

“The bank’s chief executive officer, John Stumpf, even called one prominent Democrat in Congress to express his willingness to assume personal responsibility for the mess. The bank fired at least 5,300 employees and refunded millions of dollars to customers.

“But with its banking regulators, Wells Fargo was not as contrite. The bank agreed to pay $185 million in fines and hire an independent consultant to review its sales practices, but it was able to settle the investigation into the questionable accounts without officially admitting to any of the suspected misconduct.

“It was classic Wall Street. . . . [F]requently, regulatory cases are settled without a bank having to admit doing anything wrong.

. . .

““It’s very troubling,” Senator Jeff Merkley, an Oregon Democrat and member of the Banking Committee, said in a telephone interview Friday. “Wells Fargo is saying they take responsibility, but they aren’t actually taking responsibility in the official sense.”“

Sometimes defendants are reluctant to publicly admit fault because they fear that this could complicate their legal positions and increase their liability exposure.  From the NYT article:  ““It ends up being a win-win,”’ said Robert Hockett, a professor at Cornell Law School. “The regulator gets some kind of payment from the accused, and the accused gets to ease the risk of private plaintiff litigation by not admitting to guilt.”“

Professor Hockett’s concept of win-win (at least as quoted by the NYT) overlooks the public interest in accountability, which takes a loss when defendants who break the law evade moral and potential legal responsibility in this way.  Assuming that the defendants correctly calculate that they reduce their liability by refusing to admit fault, plaintiffs presumably are cheated out of some of the recoveries that they deserve.

We understand the practicalities of these cases as the defendants usually would not settle if they had to admit fault.  If we were lawyers representing prosecutors or plaintiffs, we would probably agree to such settlements as preferable to all the downsides of continued litigation in most cases.  But we should acknowledge the social costs of legal denial that Professor Cohen illuminates.

Georgetown University

The case of Georgetown University provides a contrast with Fox and Wells Fargo.  Prodded by protests, Georgetown University plans to apologize for having sold slaves in the 19th Century.

Georgetown convened a Working Group on Slavery, Memory, and Reconciliation, which produced a 104-page report.  It provides a detailed factual account of the events and includes a recommendation for an apology.  In addition, Georgetown plans to “giv[e] preferred status in admissions decisions to descendants of the people the school sold, creat[e] a memorial to them on campus and push[] its professors to study ways to address lasting racial injustices.”

University President John DeGioia said that Georgetown will undertake an ongoing effort to “engage directly with descendants of slaves and with members of the Georgetown community. . . . This will include soliciting feedback, determining priorities for the work going forward, and creating processes and structures to enable that work.”

Commentator Courtland Milloy is unsatisfied.  He noted the following statement:  “We provide care and respect for the members of the Georgetown community: faculty, staff, alumni, those with an enduring relationship with Georgetown,” University President John DeGioia said last week. “We will provide the same care and respect to the descendants.”

Mr. Milloy responded: “The same?  As if a legacy of slave labor in the making of Georgetown was the same as a legacy of freedom to enroll in the school?  Working under the lash without pay and meager rations the same as earning a diploma and getting a good-paying job?  Being sold down the river to even more brutal slave camps and families torn apart, the same as having the means to buy a house, support a family and pave the way for the next generation?”

I don’t see anything on the Georgetown website about an amount of money that it would invest in its reconciliation efforts.  Mr. Milloy argued that Georgetown has an endowment of more than $1 billion and it should invest a substantial amount in this effort.

Karran Harper Royal, a descendant of one of Georgetown’s slaves who was sold, also wants Georgetown to do more.  She wants it to engage more with the descendants, partnering with a new foundation dedicated to reconciliation, and to offer descendants full scholarships, not just a preference in admission.  She noted that Georgetown almost missed an opportunity for reconciliation when it did not initially invite descendants to the announcement of the findings of the study group.

The responses of Mr. Milloy and Ms. Harper Royal reflect questions about Georgetown’s sincerity and dissatisfaction with the amount of resources that it will devote to this effort.  Although Georgetown’s working group recommended engagement with descendants in the future, the working group apparently did not include any of the descendants and they were not initially thought to be invited to the announcement of the working group’s report.  These lapses undermined the effectiveness of Georgetown’s efforts at reconciliation.

Hillary Clinton

We are now in the midst of a media flurry surrounding Democratic presidential nominee Hillary Clinton’s statement at a fundraising event about Donald J. Trump’s supporters.  She said:

“You know, to just be grossly generalistic, you could put half of Trump’s supporters into what I call the basket of deplorables. Right?  The racist, sexist, homophobic, xenophobic, Islamaphobic — you name it.  And unfortunately there are people like that.  And he has lifted them up.  He has given voice to their websites that used to only have 11,000 people — now have 11 million.  He tweets and retweets their offensive hateful mean-spirited rhetoric.   Now, some of those folks — they are irredeemable, but thankfully they are not America.

“But the other basket — and I know this because I see friends from all over America here — I see friends from Florida and Georgia and South Carolina and Texas — as well as, you know, New York and California — but that other basket of people are people who feel that the government has let them down, the economy has let them down, nobody cares about them, nobody worries about what happens to their lives and their futures, and they’re just desperate for change.  It doesn’t really even matter where it comes from.

“They don’t buy everything he says, but he seems to hold out some hope that their lives will be different. They won’t wake up and see their jobs disappear, lose a kid to heroin, feel like they’re in a dead-end. Those are people we have to understand and empathize with as well.”

Read in context, Ms. Clinton’s point was that her supporters should empathize with some of Mr. Trump’s supporters rather than condemn them all.

The next day, she tweeted a limited apology.  She said that gross generalizations are never a good idea and she regretted characterizing “half” of Mr. Trump’s supporters.  Most of her statement listed the reasons why she considers his campaign deplorable and it said that she “won’t stop calling out bigoted and racist rhetoric in this campaign.”

People’s satisfaction probably is related to their general views of Ms. Clinton and Mr. Trump.  Not surprisingly, Republican officials denounced her original statement and presumably are not at all satisfied with her apology.

On the other hand, liberal blogger Greg Sargent wrote a post entitled, “Spare Me the Phony Outrage over Clinton’s ‘Basket of Deplorables’ Remark.”

People without strong partisan identification may react based on the news coverage they get.  Some reports don’t mention or de-emphasize Ms. Clinton’s remarks about the second “bucket” of Trump supporters.  People hearing such reports are likely to be less satisfied than those who hear more about the second bucket.

Some Analysis

Quality of Apologies

These cases (including some from part 1) – Donald J. Trump, Fox, Geraldo Rivera, Ryan Lochte, Nate Parker, Hillary Clinton, Wells Fargo, and Georgetown – provide an interesting group for comparison.  All seem problematic to varying extents.

Mr. Trump did not seem to be serious about his apology considering his facial expressions when he gave the apology, lack of specifics about what statements he was referring to, and later continuation of the behavior he said he regretted.

Fox gave a brief apology, which was remarkable only because virtually no corporate defendants actually apologize.  Mr. Ailes, whose public statements have been vociferous denials and who acquiesced to Fox’s settlement, has not apologized at all.

Wells Fargo issued a legalistic acceptance of responsibility but made no admission of wrongdoing.

Ms. Clinton believes that her error was in poor communication and that she should have said that “most” Trump supporters deserve empathy because they feel that no one cares about them but that “some” Trump supporters are deplorable.  Thus she presumably believes that her error was primarily technical rather than moral.

Mssrs Rivera, Lochte, and Parker seemed to be struggling to express genuine  remorse (to varying degrees) but have stumbled in the process.

Georgetown also seems to have stumbled a bit.  However, its detailed factual accounting and plans for a formal apology and an ongoing inclusive process may be the start of a promising dispute system design effort for restorative justice.

Effect of Apologies on Wrongdoers

So far, this analysis has focused only from the perspective of outside observers.  Apologies can and should have redemptive effects on the wrongdoers as well.  Presumably this should largely correspond to the degree of the wrongdoers’ remorse.

Mr. Ailes seems to have no remorse.  The events in this story may affect him more by impressing on him the financial and reputational costs of wrongdoing (or at least the costs of getting caught).

Similarly, Mr. Trump seems to have no real remorse for his statements that hurt others.  His apology seemed to be a political tactic and its effect on him probably is a function of his assessment of how much it achieved his political objectives.

Ms. Clinton similarly has no fundamental remorse.  Rather, she regrets that her statement was sloppy and provoked unnecessary criticism.  The effect on her is likely to prompt her to be more cautious in making future statements.

Fox and Wells Fargo, huge corporations, do not seem particularly interested in redemption and seemed to take their actions primarily to minimize further damage.

The process for individuals (at least those who are not as high profile as Trump, Ailes, and Clinton) undoubtedly is different from large corporations.  It is hard to know how the process has affected Rivera, Lochte, and Parker.  Indeed, the process for them may unfold over an extended period of time and never be truly known by the public.

Georgetown will be an interesting case study lasting for years and even decades.  If Georgetown seriously engages key stakeholders and takes their input to heart, the process could result in deep constructive changes in the institution and individuals who deal with it.

Given the great polarization in US society these days, we need much more reconciliation.

8 thoughts on “Non-Apology Apologies, Part 2”

  1. This is a very interesting piece, especially the section regarding the quality of apologies. I sometimes find that institutions and political figures are often commended for making any type of apology without regard for the quality and content of such apologies. In some cases, empty apologies might do more harm than failing to make an apology at all.

  2. Thank you John, and also others who commented before, for your very thoughtful posts.

    Often we discuss apologies in a binary way – either the person apologized or they didn’t. Yet life can be murkier than that, especially but not exclusively when apologies occur in the public sphere. Even when apologies are purely private, judging them through binary lenses can be problematic, and a spectrum view of apologies (i.e., “the person admitted their fault about this but entirely sidestepped that”, “the person said they were sorry but only offer partial remediation”, etc.) as a verbal piece of responsibility taking may at times be more helpful. Sometimes apologizers are intentionally offering “fauxpologies” in a manipulative way, but other times apologizers are worried about how third parties might use their apologies or, most simply, can only bring themselves to apologize part way. Ideally, people would face their wrongdoings squarely and admit them fully and frankly, but life is often more complex than that.

    For those who want to see purer apologies – apologies where actors squarely admit rather than evade fault – I recommend reading Lee Taft, Apology Subverted: The Commodification of Apology, 109 Yale Law Journal 1135 (2000). Taft argues powerfully that such fauxpologies aren’t apologies at all and that we should be very skeptical about such manipulative attempts. Jennifer Robbenolt’s excellent empirical research on legal apology (she has so many fine papers that I won’t try to list them all here) showing how recipients discount less-than-full apologies is extremely relevant. One basic lesson I take from Robbenolt’s research is the need to critically assess apologies, as John Lande’s post has insightfully done.

    Finally, I think it is important to recognize that apologies made in the media spotlight, especially in the political realm, are often quite different creatures from private apologies. The clearest example may be when people today are apologizing for events members of their organizations did long ago (e.g., when a modern-day Pope apologizes for the Inquisition, when Georgetown comes to grips with its slavery history, etc.). In such a case, the person now apologizing may personally have done nothing wrong and faces little or no personal shame, making the act of apologizing easier. Conversely, a politician may refrain from apologizing not because s/he believes s/he did nothing wrong, but because some voters may view apologizing as a sign of weakness, and the politician doesn’t want to appear weak. More generally, when an apology is at root directed toward the media/public rather toward than the particular individual(s) harmed, it needs to be assessed differently: it is in significant part an act of public relations rather than private relations. The line between apologies in the media spotlight and private apologies is not entirely sharp, but still the former frequently involve considerations distinct from private apologies.

    Thank you again, John, for your enlightening discussion!

    1. I really appreciated your various comments about the art of the non-apology apology which seems to becoming more pervasive in our society, whether the figures are in the spotlight or not. In our culture of self-indulgence and self-importance, we feel we couldn’t truly have been wrong, or at least all of the blame couldn’t have been on us. There must be something a little wrong with the other person, i.e. I’m sorry your feelings were hurt. I’m sorry you took my comment that way.

      Your first example is quite laughable. Rivera’s non-apology apology was ironic. Rivera apologized for saying things that were nasty, but then went onto explain why he was justified in feeling that way. He complained about the media trying to seek every detail about an employment situation. Rivera is part of the machine that created the need to know every painstaking detail. His job was to expose these kinds of issues.

      We all like to feel validated and the non-apology, apology unfortunately just doesn’t cut it. Culturally, we are more emotionally disconnected from our peers and perhaps less forgiving, so lip service just isn’t enough to satisfy the masses. As you noted in your article, Trump was using words to say one thing but his body language was saying something else. 90-95% of communication has nothing to do with the words coming out, and everything to do with things like body language and tone. To make the recipient feel validated, words are not enough.

      The legal system can sometimes be an inhibitor of victims receiving true apologies. We can’t admit fault for fear of paying the price either with freedom or in an actual dollar amount. I think if we want true apologies, we would have to be a less litigious society.

  3. Non-apology apologies are a reflection of our culture at large. First, as a society, we are self-centered. WE couldn’t possibly be wrong, or at least not with sharing the blame with someone else. I’m sorry YOUR feelings were hurt, or in Mr. Rivera’s case, “I’m sorry but it’s not really my fault. It’s the media.”I also find this non-apology apology amusing because he tried to shift the blame onto a group of people, of which he is a member, by proxy blaming himself.

    Secondly, we are a highly litigious society. There is extreme apprehension of taking blame because it could result in a lawsuit, which even if found not truly responsible, could result in expensive attorney’s fees. As you noted in your article, this could be why Wells Fargo wasn’t quite as “contrite” with regulators.

    Thirdly, as much as we are connected as ever via social media, individuals feel as lonely as ever with no sense of community and no connection to those around them. It’s hard to feel apologetic to someone you don’t actually care about or care for. They’re the gum under your shoe. As a society, we are also quicker to judge and quicker about jump on the bandwagon with our pitchforks to go after someone who has made a mistake. This dissuades people from perhaps giving as full of an apology.

    Hillary’s non apology is in a category all its own. She tries to backpedal and say it only applied to some people, not all, and therefore her comments were some how more appropriate. She went on at length about how terrible all of this was, either apologize or don’t. The half apology just made both sides angry.

  4. One of the best apologies you will ever see is the one given by Australia’s former prime Minister, Kevin Rudd, to Australia’s first people. You can find it readily on youtube. Even after many viewings it has the power to move me deeply. It is an apology that takes responsibility for wrongdoing and longlasting harm.
    We need to look for the genuine, from the heart apologies and give them oxygen rather than focussing on the failures.
    The lame excuses about avoiding liability are just that – lame excuses. We know apologies work magic and reduce demands for compensation and revenge, rather than inflate them – and many jurisdictions have legislated to protect the apologist from liability.

  5. Your article was insightful and offered many great examples of what not to do. As a means to provide an example of a relatively effective apology I would offer JetBlue’s apology from 2011 when the passengers and crew were stranded for eight hours on a tarmac with little to no food, water or any help from the company. Some critics have suggested JetBlue’s apology was successful. COO Rob Maruster appears to take full responsibility for the company’s lack of response to the crew’s request for help during this ordeal. Maruster also indicated that they were sorry, that it’s customers deserve better and they were going to conduct a full internal evaluation so they can learn from their mistake. Lastly he pleaded for a second chance. He aired his video apology via the company blog and YouTube which allowed the public to see and hear his sincerity. Most notably he did not cast blame on others. According to an article written by Professor Leigh Thompson, entitled The Mind and Heart of the Negotiator, published in Dispute Resolution Beyond the Adversarial Model, Second edition, by Carrie J. Menkel-Meadow, Lela Porter Love, Andrea Kupfer Schnieder and Jean R. Sternlight, there are several steps that can be taken to repair broken trust. Of the 12 listed in the article, JetBlue accomplished at least six steps. Of the completed steps, JetBlue addressed the problem right away, in a manner that could be as personal as possible considering the broad audience, apologized (without casting blame), let the public know he valued the relationship, did not get defensive, completed an evaluation and tried to plan for a better future together.

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