Tanzania's Disability and Work Legislation Quotas

Tanzania enacted the Disabled Persons (Employment) Act (No. 2) in 1982. This act established a quota system requiring that two percent of the workforce in companies with more than 50 employees must be persons with disabilities. It also established the National Advisory Council, the role of which was to advise the minister responsible for the social welfare of people with disabilities (International Labour Organization, 2009). Although covered employers were required to hire based upon the quota system, this law was neither effectively publicized nor enforced by the Tanzanian government. Indeed, in 2010 only one-third of employers that participated in a survey on disability were aware of the Disabled Persons Employment Act of 1982 (Kweka, 2010).

The 2010 Act imposes similar requirements with respect to the employment of people with disabilities. Specifically, Article 31 requires employers to hire and maintain the employment of people with disabilities and establishes a work force quota under which every employer with a work force of 20 or more individuals must employ persons with disabilities at a rate of at least 3% of the employer's total workforce (Tanzania, 2010). As disability employment accountability mechanisms, workplace quotas are still utilized in a number of different national contexts, including Austria, Germany, Japan, France, Italy, Poland, China, and Korea (Heyer, 2005; Kim, 2011; Tamako, 2007); however, their utilization has been subject to criticism on theoretical grounds, namely the "tensions between the rights model, which in the employment arena mandates equal employment opportunity, and the welfare model, which responds to employment discrimination by mandating quotas" (Heyer, 2005, p. 238). The quota system has been further criticized on other grounds as well: (a) labeling people with disabilities; (b) company preference for paying a penalty rather than employing people with disabilities; (c) difficulty to set effective sanctions to force/strengthen the system; (d) low wages and underemployment of people with disabilities; (e) difficulty in meeting the multiple and diverse needs of people with disabilities in the workplace; and (f), effects of economic recession on full employment goals (Kudo, 2010).

A further examination of quotas versus civil rights

The contemporary Disability Studies community typically favors the civil rights (as opposed to the quota) model because the former replaces the medical model's focus on the individual with a focus on disabling social environments and social structures (Heyer, 2005). However, it is arguable that both the civil rights and the quota models have strengths and weaknesses. It is important to understand the differences between the quota model and civil rights models as it relates to the Tanzanian situation because these two models contribute to societal understanding of the "burden" of disability. Thus, before continuing a discussion of the other work-related Tanzanian policies, I will first compare and contrast the quota and civil rights models through an examination of two countries, one that follows the quota model (Japan) and one that follows the civil rights model (United States). Although framing this discussion with examples from the African continent would be more useful, despite an extensive search, literature on this topic related to African countries remains extremely limited. I draw upon the experiences of Japan and the United States with the hope that this will provide a more in-depth understanding of the Tanzanian experience.

One problem with the quota system is that it assumes that, unless they are required to do so, employers will not hire people with disabilities and that people with disabilities are not able to compete for jobs and win them on their own merits. These assumptions can be disabling and patronizing for people with disabilities (Heyer, 2008) and can become systems of segregation that are antithetical to claims to equal opportunity and civil rights and, therefore, just another stigmatized form of special treatment for people with disabilities (Heyer, 2005). Moreover, the recognition of difference as found in the quota approach "comes at the expense of equal rights and integration as mandated by the United Nations" (Heyer, 1999, p. 107).

The United States has one of the more well-known civil rights laws, the Americans with Disabilities Act (ADA), which prohibits employment discrimination. The ADA also mandates that an employer provide reasonable accommodations to otherwise qualified individuals with disabilities. In a comparison of Japan's quota-based system and the United States' civil rights-based system, Tamako (2007) argues that although the United States,

…guarantees remedies against discrimination and allows for flexible responses to specific circumstances, it creates problems for employers attempting to predict what constitutes discrimination. Furthermore, at least at this time, it has not demonstrated positive effects with respect to the advancement of the employment for people with disabilities (p. 54).

Identifying categories of disability and an inadequate understanding of the operating definition of "otherwise qualified individuals with disabilities" have limited the effect of disability anti-discrimination law in the U.S. (Heyer, 2008). Other studies have shown that civil rights laws, although they have important effects, such as enabling access to services, may not be the most effective means of increasing employment rates of people with disabilities, as shown by research on the numbers of individuals hired once an anti-discrimination law has been enacted (Jones, 2008; Kim, 2011; Pope & Bambra, 2005; Tamako, 2007). There is also a contradiction inherent in the ADA's use of the courts as a remedy for discrimination: as Heyer (2008) argues,

In claiming disability discrimination, plaintiffs are asserting their fundamental equality with the able-bodied. They are applying a civil rights frame by claiming that they are just as qualified to perform a certain job and that they deserve an equal chance of competing for this job, or continuing to perform it. At the same time, however, the law demands that they emphasize their difference — their disability — for which they are being discriminated against in the first place (p. 255).

By contrast, Japan has adopted an employment quota approach. Tamako (2007) argues that, in comparison to the ADA, the Japanese system is better able to secure positive effects on employment of people with disabilities, but only within certain parameters because "it is characterized by an inadequate perspective on the equal treatment of people with disabilities and on prohibitions of their discrimination, and lacks a sense of association between disabilities and job performance" (p. 54). Further, large companies have found a way to comply with the quota by "establishing special 'barrier-free' subsidiary companies (tokurei kogaisha); these hire primarily people with disabilities who then count for the parent company's employment quota" (Heyer, 1999, p. 115). Other commentators have argued that the Japanese tax or penalty for not hiring people with disabilities is too low and that employers would prefer to just pay the fine rather than hire employees with disabilities (Wuellrich, 2010). Employers tend not to view the quota as a social responsibility but rather they "prefer to buy themselves out of their obligation and continue to employ a largely non-disabled workforce" (Heyer, 2008, p. 249). This system of compliance clearly has a stigmatizing and separating effect on people with disabilities, again rendering them as different and outside of mainstream employment; and, despite the workplace quotas, the Japanese workplace remains segregated (Heyer, 2008). Regardless of the criticisms, there have been increasing numbers of people with disabilities (especially people with severe disabilities) working in companies covered by the quota system over the past 16 years (Kudo, 2010).

Tamako (2007) argues for a merger of the civil rights and quota based approaches and for a law that strives both to remedy the problems involved in adopting the conception of equality (associated with the civil-rights approach) and to increase the efficacy of mandated employment quotas. The key issue of debate between civil rights laws and quota laws seems to be the issue of how to guarantee equity while still not denying the personal experience of disability. Evoking Minow's (1990) discussion on the dilemma of difference, Heyer (1999) argues that this is one key issue that arises in a discussion of equity and quotas:

Ignoring difference leaves in place a false sense of neutrality which may recognize that people with disabilities have similar motivations to work, study, commute, and raise families, but which does not take their different needs into account. At the same time, focusing on their difference risks repeating the stigma and limiting assumptions about disability. The difference dilemma has forced subordinated groups into a divided agenda, caught between providing their sameness, which becomes the basis of their equal treatment, and identifying their difference (p. 108).

Both the civil rights approach and the quota approach have challenges in adequately and appropriately providing equal employment of people with disabilities. The effectiveness of both seems to depend on "political/technical supports, administrative capacities, and organizational culture for work environments friendly to persons with disabilities" (Kim, 2011, p. 29). The question for this article is how well Tanzania is applying the law as it is presently written and not specifically whether Tanzania should have adopted either the civil rights or the quota based approach; it seems to have adopted both. The focus here is on implementation as a reconceptualization of the "burden" of disability.

Additional disability policy requirements

In addition to requiring workplace quotas, Article 31 of the Act further advances the employment of persons with disabilities in several other ways. It requires every employer to submit an annual report to the government on the employment status of persons with disabilities who are employed in his or her office or organization. It also requires equal treatment of people with disabilities (in terms of wages, salaries, leaves, or accommodation). Finally, it provides that people with disabilities should be welcomed to apply in public advertisements for disability positions (Tanzania, 2010).

Articles 32 and 33 relate to the continuation of employment of persons with disabilities and the antidiscrimination of persons with disabilities in the workplace. Article 34 addresses an adequate working environment for persons with disabilities, requiring employers to prevent work-related injuries, provide workplace accommodation if necessary, ensure the safety of employees with disabilities, protect employees with disabilities from harassment, permit employees with disabilities to have equal access to trade unions, and enable employees with disabilities to have access to continued training and career advancement (Tanzania, 2010). The Act also requires the responsible Minister (at the Ministry of Health and Social Welfare) to ensure promotion of employment for persons with disabilities by applying affirmative action treatment, job retention and return to work for any employee who has obtained a disability in the workplace, and reasonable changes for persons with disabilities in the workplace (Tanzania, 2010).

By integrating both antidiscrimination and workplace quotas, Articles 31-34 reflect an integrated approach, which Kim (2011) argues is "more effective to promote the employment of people with disabilities in developing or emerging countries, because of the strengths and weaknesses of both approaches" (p. 29-30). Notwithstanding the Act's provisions for workplace quotas and mandatory employer reporting procedures, there continues to be adisconnect between policy on paper (the Act) and practice on the street. People with disabilities are still clearly underrepresented in the national workforce (Kweka, 2010).

The Tanzania Union of Industrial and Commercial Workers (TUICO) study

Motivated by a lack of national statistical data on the employment of people with disabilities and understanding the need for increased awareness of employers about people with disabilities, researchers from Comprehensive Community Based Rehabilitation in Tanzania (CCBRT) Hospital, Radar Development, and Disability Aid Abroad conducted a 2010 study about employment of people with disabilities in Dar es Salaam. This study was conducted after the Persons with Disabilities Act of 2010 was passed into law. It identified the number of persons with disabilities engaged in formal employment in companies affiliated with the Tanzania Union of Industrial and Commercial Workers (TUICO). TUICO is one of the leading commercial and industrial trade unions in Tanzania (Kweka, 2010), comprising over 50,000 members nationwide. The study used questionnaires, document reviews, and face-to-face interviews to collect data from 126 companies (93 local companies and 33 multi-national companies), with 252 respondents in total from those 126 companies. All of the respondents were human resource personnel, administrators, or managers. The types of companies surveyed were industries, commercial institutions, financial institutions, services, and consultancies from both the public and the private sector. Six of the companies had less than 20 employees and 120 companies had over 20 employees (Kweka, 2010). The questions addressed general company information, number of employees (in general, with disabilities, in managerial positions), the types of disabilities the employees had, the types of jobs they held, and employer knowledge of the law and policies overseeing disability issues at workplaces.

Because this survey of employment of people within TUICO in Dar es Salaam was conducted by NGOs, its intended final audience was not academics and thus the study methodology was not described in fine detail in the final survey report. As such, the data should be interpreted with caution and further studies will be required to draw more definitive conclusions. Nonetheless, it provides some data and is an important starting point for more rigorous studies. It is important to note also that readers should not extrapolate the findings of the TUICO study to other employers in Tanzania. As a snapshot of the disability employment reality in one large trade union in Dar es Salaam, the study, the first of its kind in Tanzania, has some but admittedly limited value.

The lead NGOs conducting the TUICO survey found that, of 126 companies with a combined total of 25,446 employees, only 186 (0.7%) of the employees were persons with disabilities (Kweka, 2010). Additionally, only seven companies had more than 3% employees with disabilities, in conformity with the Act's requirements. Employers cited several reasons for their failure to comply with the Act, including (a) inadequate information and advice; (b) additional financial burden; and (c) additional support required (some employers were worried that people with disabilities would not be as productive in the workplace or that they may need ongoing workplace support) (Kweka, 2010). In terms of inadequate information and advice, this study showed that many employers believed hiring people with disabilities was time consuming. Moreover, they did not know where to go to find suitable persons with disabilities for advertised posts. Employers believed that an additional financial burden would occur when they employed people with disabilities because employers would have to make physical adjustments to buildings and equipment in order to accommodate employees with disabilities. Finally, some employers worried that if they were to hire people with disabilities, those employees would not be as productive in the workplace as employees without disabilities. They also worried that, unlike nondisabled employees, employees with disabilities would need ongoing workplace supervision and support. Additionally, researchers found that although 33 percent of the companies were aware of the Disability Employment Act of 1982, only seven percent of the companies were aware of the Act of 2010.

The TUICO study clearly demonstrates that there is significant misalignment between numbers of people with disabilities who should be engaged in formal employment, as provided for by the 2010 Act, and actual numbers of people with disabilities engaged in formal employment in practice. There is, however, more evidence of the misalignment.

Qualitative Interviews

This evidence derives from qualitative interviews that I conducted in Dar es Salaam in 2011. The purpose of these interviews was not solely to understand employment in Dar es Salaam, but also to probe disability responses and needs in Dar es Salaam. A question about employment (and further follow-up questions) was included on interview protocol. Responses to this question helped to provide further context for understanding the policy/reality implementation gaps presented in the TUICO study.

Between May and August 2011, I visited six schools, two international NGOs, six national Disabled Peoples Organizations (DPOs) and NGOs, and three hospitals and rehabilitation centers. I interviewed thirteen family members of people with disabilities, six teachers of students with disabilities, three people with physical disabilities, ten people with visual impairments, two people with intellectual disabilities, two doctors, and seven other disability service providers, for a total sample size of 43. I recruited participants primarily through various DPOs and NGOs; thus, most respondents were affiliated in some way with a disability advocacy organization.

Because this study was a precursor to future research, I did not recruit respondents based on any finite definition of disability. Rather, I included anyone who self-identified as a person with a disability or as a family member or service provider of a person with a disability. Because I relied on self-identification, some participants had a formal diagnosis of a disability whereas others did not. Generally, I would contact DPOs or NGOs with my general study aims and would request that they provide me with contact of people who were willing to be interviewed. This identification/selection of members to interview was typically based upon people who were active in the organization, willing to speak with me, a foreign interviewer, and who had ability to provide an interview on short notice.

I held interviews in locations that were comfortable and convenient to my respondents. These included participants' homes, coffee shops, work settings (e.g. a classroom, office, or clinic), the assisting DPO or NGO office, and in recesses of a conference one respondent was attending. Participants included both males and females; they ranged from 18 to 70 years of age. Although there were no specific interview questions requesting information on socioeconomic status, based upon observations of the homes visited and information volunteered by families, the participants represented a variety of socioeconomic backgrounds. For example, one home visited was a one-room mud structure on a piece of rented land on the outskirts of the city. In this home lived a grandmother, a single mother, and her three young children. This mother mentioned one of her greatest concerns was not having enough money to meet basic daily subsistence needs. We sat on a mat on the ground outside the home to conduct the interview. This home contrasts with another home, closer to the city center, occupied by a husband and wife and their son. Their home was built in more western-style, with a number of rooms and indoor bathrooms, a variety of furniture and electronics, and a car parked within the house's compound walls. I sat on a large, black, leather couch in the expansive sitting room of the home to conduct the interview. The majority of homes visited fell somewhere on the continuum between the two extremes described above. Most participants' homes consisted of a single room or a cluster of rooms in a rented structure with a communal compound (and often an outdoor lavatory and washing room) shared with a number of other resident families.

I conducted the interviews either in English or Kiswahili, with the assistance of a translator. The language was based upon interviewee's preference; approximately one quarter of the participants chose to respond in part or entirely in Kiswahili, but the majority of interviewees seemed to understand questions when posed in English and responded in Kiswahili even before the question was translated. It is important to note that, due to my initial sampling procedures that relied on the contacts and membership base of NGOs and DPOs, the sample is likely skewed toward (a) persons who are inclined toward self-advocacy and advocacy of the rights of persons with disabilities (in terms of education about rights/empowerment and/or the time and resources available for advocacy efforts and membership) and, (b) in some cases, persons who are educated enough to converse in English (at least to secondary level but often to university level).

The interviews lasted between 30 to 90 minutes. The questions focused upon general personal characteristics and experience (e.g., "Tell me about yourself and your experience with disability?"; "In your experience, what are some key issues for people with disabilities in Dar es Salaam?"), how the respondent began to associate with having a disability and/or being a disability advocate (e.g., "why did you decide to join/affiliate with [recruiting organization]?"), and what if any difficulties they have faced, lessons they have learned, or needs they have that are unmet (e.g., "if someone had a family member with a similar disability as [you, your family member, your clients] what would you like for them to know?"; "what are some of your greatest supports?"). Themes of education, employment, and parent involvement emerged and I began to probe specifically about these issues as well. The interview protocol also concluded with an opportunity for respondents to provide information on topics or issues I might have omitted in my interview questions but that they believed were important. For the purposes of this article, I discuss only those responses that provide insight into the employment situation of people with disabilities in Dar es Salaam.

Interview Findings

Respondents with disabilities perceived that employers still discriminated against them on the basis of their disabilities. For example, one teacher with a visual impairment told me: "There is a requirement in our country that a person must hold a diploma to become the head of a primary school. Our head retired, and a person without a diploma got the job over me [a person with a diploma]; I wasn't even asked." Respondents also admitted to withholding disability status until being granted a face-to-face interview; but, they said that as soon as the potential employer saw that they have a disability, the employer's demeanor completely changed. As one respondent with a visual impairment noted, "Even people who are qualified, they are not accepted for employment. You get an interview, but then they see you and they dismiss you." And as one lawyer (who was a disability advocate but not a person with a disability herself) argued:

There is a community attitude… even if they are lucky enough to get a job, they have challenges. For example, I know one woman who reported to four different schools when she got her job, but they [potential employers] all found ways to dismiss her when they saw she had a disability. Eventually she went all the way to the Minister, and now she has a job in a school. But she struggled very hard for this.

Many of the respondents said that even if a person with a disability is well-educated and well-qualified to do a job, employers will always favor non-disabled candidates and do not comply with the Act's antidiscrimination provisions:

Even the policies and laws are not followed. Employment is a big problem, even for those with an education; they have a hard time trying to get employment. People [with disabilities] hesitate to opt for certain professions these days, such as law, because they know they won't be employed after their training.

Additionally, some parents of children with disabilities expressed anxiety about their children reaching adulthood, fearing that their children would not be able to find gainful employment. For example, one mother of an adult with intellectual disabilities, when asked about her dreams for the future responded,

My son is 32. He is living with me and he is not married like his sister. We don't know how his life will be, we don't know. People with physical disabilities, they can be educated, but they also face challenges. Especially for employment. Two people with the same qualifications, the employer will always pick the non-disabled person.

These interviews reveal that people with disabilities in Dar es Salaam perceive that they are subjected to employment discrimination solely on the basis of their disabilities. Moreover, these data further demonstrated the common belief that once a child with a disability has completed his or her education, it will be difficult for him or her to find employment in adulthood. This difficulty is also reflected in the numbers of persons employed in the companies that participated in the TUICO study: the numbers of disabled employees does not even approach the estimated number of persons with disabilities in that city.

In sum, people with disabilities are not adequately represented in the workplace; they continue to experience what they believe to be discrimination in the workplace; and, a number of individuals not unjustifiably conclude that it is more difficult for a person with a disability to find and keep employment than it is for a person without a disability.

Why are accountability mechanisms not working?

There are several reasons why the employment regulations in the 2010 Act may not yet be yielding substantial improvement in the employment of people with disabilities. First, the Act itself is recent, and there is an understandable, if regrettable, lag time between enactment and compliance. Granted, it takes time to publicize and ensure implementation of new policy requirements and, further, that positive change takes time. That said, it is also important to note that how quickly a law is able to effect positive change will greatly depend on how effectively this law is implemented from the outset. These include: (a) negative or stereotypical attitudes, (b) lack of awareness of the Act and the requirements within, (c) missing enforcement mechanisms of the Act, and (d) no incentives for employers to adhere to the Act.

Limitations

A limitation of this work is that it is based upon data gathered in one major city of Tanzania and as result may not reflect conditions elsewhere in Tanzania. Although Dar es Salaam is the country's largest city, and thus is an area in which disability supports and services are most widespread. It is unlikely that data from one city can provide an accurate picture of the disabilities and work realities in the entire nation. It will be important to expand compliance research to other, more rural areas in Tanzania, in order to better understand the similarities and differences across a greater, more representative distribution of the nation's population.

Similarly, although this article has addressed the lack of persons with disabilities in formal employment in Tanzania, it has not integrated data on the prevalence of persons with disabilities in informal employment, a sector in which persons with disabilities are also engaged. Informal employment is a term that is typically used to describe insecure forms of economic activity in the developing world and can include such activities as self-employment, employment in micro-businesses or family-run activity, as well as "employment where the employer fails to provide appropriate access to social protection or formal registration of any contractual relationship" (Henley & Arabsheibani, 2009, p. 992). Informal employment is omitted in this analysis and discussion because formal employment is the first area in which concrete action can be taken to ensure legal accountability with the 2010 Act. Future studies should also examine prevalence of and experience of persons with disabilities in more informal sectors of employment.

Lastly, this article has not addressed the equally-important potential problem of a lack of qualified, employable persons with disabilities in Tanzania. As a consequence of lower rates of education for children with disabilities than for the general population of children (Mkumbo, 2008) and of inadequate or inappropriate education for children with disabilities even if they are provided access to education, people with disabilities may well be at a disadvantage in a competitive work environment. Although it is important to ensure that people with disabilities are hired in all types of jobs — both those requiring education and those that do not require education — it is of as much importance to ensure that children and youth with disabilities are provided with equal access and preparation in elementary school, high school, and universities in order to ensure an appropriate level of aptitude for employment as an adult.