What “American Vandal” Does (Not) Teach Us About Workplace Investigations


I don’t normally binge watch TV shows. While time is certainly an issue, I’m not going to go as far as to self-importantly claim that I do not have any availability to watch television. Let’s just say it’s a big commitment that I personally have a tough time setting aside. I’m more than happy with the handful of shows that I tune into weekly, and the occasional movie or sporting event when available.

Source: Postergen.com

However, I recently had a very lengthy business trip and was looking for something to watch on the plane during some downtime. Based on recommendations as well as reviews (97% fresh on Rotten Tomatoes if you’re into that sort of thing), I settled on Netflix’s American Vandal. Seeing as Season 2 just released this month (which I haven’t yet seen), I figured an eight episode Season 1 was not too large of a commitment.

American Vandal is essentially mockumentary/parody/satire of the true-crime genre of documentaries such as Making a Murderer. However, instead of investigating real world crimes, American Vandal is a fictional investigation into who spray-painted male genitalia on twenty-seven cars in the faculty parking lot of a high school. The alleged perpetrator, high school senior Dylan Maxwell has been expelled. A couple of high school sophomores, and aspiring filmmakers, are making this documentary in order to “find out the truth.” Although low-brow in tone and subject matter, American Vandal meticulously follows the templates of other true crime documentaries by looking into the alleged perpetrator’s motives and opportunity, other potential suspects, the credibility of witnesses, following the forensic evidence, re-creating timelines and the crime itself, along with requisite charts, graphs, and other visual props.

I personally found it enjoyable and quite funny.  Despite the juvenile topic and the ridiculousness of some of the scenarios, I also found myself more than once caught up with the seriousness of the investigation and attempting to figure out whether Dylan was in fact the perpetrator, or whether he’d been given a raw deal. I certainly won’t spoil the ending, or the various twists and turns throughout, but since American Vandal has its roots in other “did he/she do it” crime documentaries, it’s no surprise that it wants the audience to question the strength of propensity evidence (i.e. prior bad acts such as, you know, the classic example of Dylan’s history of constantly drawing male genitalia on classroom whiteboards), the reliability of sources and eyewitnesses, and hidden motives.

However, it’s important to remember that American Vandal is more a satire of the criminal justice system, where the standard is beyond a reasonable doubt. There is certainly a higher standard for the government in prosecuting an alleged criminal, or a public institution in taking adverse action against students, than there is for private companies conducting an internal investigation as to workplace complaints.

Of course, human resources, managers, and other personnel conducting workplace investigations should thoroughly review the evidence and interview relevant witnesses in connection with any such investigation—and document each step in the process. However, the overriding question is whether the investigation and results were “reasonable” and whether the employer took reasonable care to prevent and take corrective action. If you have an eyewitness who claims that the alleged harasser did make the statements in question, unless you have other evidence that undercuts the reasonableness of this statement, you don’t have to go all American Vandal on them and take a deep dive into unknown motives or whether the witness has something hidden in their past that could make this statement unreliable.

In addition, the draw of shows like American Vandal, Making a Murderer and others is the investigation into whether an innocent person has been convicted or blamed for a crime, and what evidence could potentially exonerate the perpetrator. Conversely, in the case of workplace complaints, the purpose is to treat these as credible allegations and conduct an investigation to see if these claims are substantiated, and then take corrective measures if necessary. Consequently, due to these differing goals, the approach to these investigations is distinguishable in many ways.

So, while American Vandal is a comically entertaining viewing experience, take it at face value for what it is, which is not a referendum on the standards to be utilized in conducting internal workplace investigations. Unless of course you find one day that someone has spray painted male genitalia on twenty-seven cars in the employee parking lot. In that case, American Vandal should be your go-to source for investigative techniques and strategies. That perpetrator won’t stand a chance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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