Labor Law, Immigration, and Remedies - Practice Tip Three: Marshal the Facts
The final point that chapter ten illustrates well for practitioners is the importance of facts. Two of my favorite sayings that I often share with my students are "the facts make or break the case" and "bad facts make bad law." (I'm sure there are other sayings related to this point and welcome you sharing them with me.)
When the discriminatee, whose real name may have been Samuel Perez, applied for a job under the name of Jose Castro, "he answered ‘yes' to the question ‘Are you prevented from lawfully becoming employed in this country because of visa or immigration status?'" Thereafter, he "completed the I-9 Form establishing that his immigration status permitted him lawfully to work." The Regional Attorney speculated that an office employee "explained to Castro that he could not be hired until he produced a birth certificate, picture ID, and Social Security card and that Castro went away and came back with the requested documents." Yet the record in the case contained no such testimony. Indeed, other than the question and I-9 form and documentation, "there was no evidence in the record as to whether" Hoffman knew Castro was undocumented or "had knowingly hired other undocumented workers."
In his post-hearing brief regarding compliance, McCortney argued that the evidence regarding Castro's immigration status was conflicted and that it was irrelevant whether Hoffman maintained a policy against hiring undocumented workers. Yet by the time he argued in front of the Supreme Court, McCortney had recast Hoffman as "the innocent" employer who had no knowledge of Castro's undocumented status. Perhaps a more factually developed record would have precluded that characterization of Hoffman.