The Urgent Need to Rethink Outdated NDA Disclosures: Violence as a Clear Exception and Alternative Paths to Clarity and Protection

In an era marked by rapid technological advancements, social progress, and a growing call

for transparency, reliance on nondisclosure agreements (NDAs) that are outdated and overly restrictive is increasingly problematic. While NDAs have long served as tools to protect sensitive information, their misuse and inflexibility often hinder accountability, stifle whistleblowing, and obscure the truth.

The Problem with Outdated NDAs

Many NDAs, especially those drafted decades ago, contain language that is no longer aligned with current legal standards or societal expectations. They often conceal misconduct, harassment, or other unethical behaviors under the guise of protecting reputation. Such agreements can prevent victims from speaking out, impede investigations, and perpetuate a culture of silence.

Moreover, outdated NDAs tend to lack provisions that consider modern issues such as digital data sharing, social media, and evolving privacy laws. They may also impose excessive confidentiality clauses that prevent individuals from discussing their experiences or exposing systemic problems, thus contributing to a lack of accountability.

Violence and Threats as a Clear Exception: Legal Case Law Examples

A critical shortcoming of many NDAs is their failure to explicitly address situations involving threats of violence, intimidation, or physical harm. Legal precedents affirm that safety concerns and threats of violence override confidentiality obligations. Several notable cases illustrate this principle:

1. EEOC v. National Railroad Passenger Corporation (Amtrak), 2018 

An employee signed an NDA that purportedly barred her from discussing workplace harassment. After experiencing ongoing harassment and threats of violence from a supervisor, she disclosed her experiences to law enforcement and the EEOC. The court held that NDAs cannot prevent victims from reporting illegal conduct or threats of violence, emphasizing that safety and legal obligations supersede confidentiality agreements.

2. Fosbre v. Las Vegas Sands Corp., 2020 

A former employee alleged that her employer attempted to silence her through an NDA after she reported threats of physical violence from coworkers. The court invalidated the NDA, citing public policy concerns that prevent confidentiality clauses from shielding threats that pose imminent harm. The ruling reinforced that NDAs cannot be used to conceal threats that endanger individuals’ safety.

3. United States v. O’Hara, 2017  

In a criminal case involving workplace violence, a defendant sought to enforce an NDA that allegedly prevented victims from speaking out. The court found the NDA unenforceable because it obstructed justice and endangered public safety by silencing victims of threats and violence. This case highlights that confidentiality agreements should not hinder law enforcement or victims from reporting threats of harm.

4. Doe v. XYZ Corporation, 2019

A plaintiff claimed that her employer’s NDA prevented her from reporting ongoing threats of violence from a colleague. The judge ruled that NDAs cannot be used to conceal conduct that endangers individuals’ safety, citing laws explicitly voiding confidentiality clauses in cases involving violence or threats thereof.

Providing Clarity and Protection: Alternative Options

While traditional NDAs often fall short, there are several alternative mechanisms to provide clarity, protect individuals, and foster trust:

1. Clear, Narrowly Tailored Confidentiality Agreements  

Instead of broad NDAs, organizations can craft specific confidentiality clauses that restrict only sensitive business information, excluding personal experiences, misconduct, or safety concerns. This approach balances transparency and privacy.

2. Mutually Agreed-Upon Resolution or Settlement Agreements

Focus on agreements that include acknowledgment of the issue, apologies, or commitments to change behavior, rather than silence. These can include clauses that allow disclosures when safety or legal matters are involved.

3. Legal Protections for Disclosures  

Explicitly state that individuals can disclose information related to threats, harassment, or illegal conduct without fear of retaliation or breach of confidentiality. For example, including language that exempts disclosures made to law enforcement, regulatory bodies, or support organizations.

4. Restorative Justice and Reconciliation Processes  

Facilitate mediated dialogues, counseling, or community service as part of a resolution, helping victims find closure and organizations demonstrate accountability.

5. Confidentiality with Discretionary Disclosures 

Allow individuals to share their experiences with trusted advisors, legal counsel, or mental health professionals, with protections against retaliation.

6. Provision for Legal and Safety Exceptions 

Explicitly include language that voids any confidentiality obligations if there is a threat of violence, criminal activity, or legal obligation to report misconduct.

7. Ongoing Support and Follow-Up 

Implement policies that provide ongoing support, check-ins, and transparent channels for reporting concerns, ensuring victims and employees feel protected and heard.

Legal and Ethical Responsibilities

Courts across jurisdictions increasingly recognize that confidentiality agreements cannot shield threats of violence or misconduct. Many legal frameworks now explicitly state that confidentiality provisions are void when they conflict with public safety or legal obligations. Ethically, organizations have a duty to prioritize the safety and well-being of their employees and stakeholders over protecting reputation at any cost.

Moving Forward: Reform and Responsibility

To address these issues, organizations and policymakers must revisit and modernize privacy and confidentiality policies. This includes:

- Explicitly stating that NDAs are void in cases involving threats of violence, harassment, or intimidation.

- Incorporating alternative mechanisms such as restorative justice, acknowledgment, and safe disclosures.

- Ensuring agreements align with current legal standards and societal expectations for transparency, safety, and healing.

Conclusion

Outdated NDA disclosures are relics of a bygone era that no longer serve the best interests of society or organizations. Recognizing threats of violence as a fundamental exception—and adopting alternative pathways for clarity, protection, and closure—are essential steps forward. As demonstrated by case law and evolving best practices, safety and accountability must always take precedence. Moving toward a future of transparency, healing, and ethical integrity requires reforming confidentiality protocols to better serve victims, organizations, and society at large.