Changed landscape

Q&A with an expert litigator of civil rights matters 

Published March 18, 2007

Lawyer John Payton is a former corporation counsel of the District of Columbia and D.C. Bar president. He is considered a premier litigator in the country and has handled complex civil matters from the trial court to the U.S. Supreme Court.

Was there a diversity baseline?

Before 1964 there was no federal law enforced that prohibited discrimination in the workplace. America was in denial about how diverse we really are. The Civil Rights Act of 1964 dealt with race, color and national origin. It presented a view of the possibilities.

Then there was affirmative action?

Affirmative action came about to counter workplace resistance. It said, "Go out and bring in black people for supervisors and do it now." Rather than wait to be sued, many companies started promoting black folks. Looming in the background, the military had been beautifully diverse. They learned from the Vietnam War. The all-white officer corps lost the ability to command the black and Hispanic troops. There are no token generals. They're from all races.

Now there's diversity?

The change in language came about 1980. There was enormous reversal by the federal government of many of the affirmative action programs. (Then came the) rise of a different term. The concept was that we're better off if we take advantage of the diversity of our communities. It is more healthy to be diverse. Look at the dramatic progress of women. Half the lawyers in the country are women.

What's new about the legal challenges?

The issue of affirmative action today is not in opening job categories to minorities, but white men who blame the advancement of minorities for their careers that didn't go the way they wanted. In the 1960s and '70s, most of the cases were challenges to companies to open up job categories. Today almost all the cases are about letting black people in.