Polish Data Protection rules are quite restrictive when it comes to the information that employers may safely request from the candidate or the employee but now there is a new question for them to consider: are you male or female?

This is not quite as silly as it sounds. As a rule you can tell someone’s gender from their name, and the issue should only be relevant where recruiting for certain roles when employing women is prohibited due to the particularly onerous or dangerous conditions of work. But what if you were recruiting for such a position and can’t tell the candidate’s gender from his/her name?

First, some brief background: until 2015 the Polish Act on Public Registrars explicitly declared that you could not register any name for a child which would not enable identification of his/her sex. This was in addition to disqualifying certain other choices parents attempted to make, like names which would be indecent or ridiculing/disgraceful.   The Polish Language Council issued non-binding instructions to Polish Registrars on names to be avoided. General practice in Poland is that names ending with ‘a’ are female names and that as there is no letter ‘x’ in the Polish alphabet, one should avoid names like Xenia, Alex or Alexandra and choosing Ksenia, Aleks and Aleksandra instead.

While it is not clear if parents have really attempted to give their offspring such names or if it was just a flight of whimsy by the Council, there is quite a list of those which are discouraged: Courtesan, Beelzebub or Lucifer to name a few. Moreover, strongly discouraged is the giving of diminutive forms of names, e.g. Susie instead of Susanne, as diminutive forms of name applied to adults may be humiliating in later life. Quite interestingly, you are also not supposed to name your child Wolf (in Polish “Wilk”), but Leo (“Lew”) would be accepted. Isn’t that clear discrimination against Polish native species? All very interesting, of course, but unless their parents have been quite uniquely cruel, you could still assume that Wilk and Lucifer were men and Courtesan a woman.

However, 2015 brought a change to our understanding of names. It is now permitted in Poland to give a child a name that wouldn’t expressly indicate his/her sex, if “in a common understanding it is attributable to a certain sex”. The problem is that we do not know what these may be. Most Polish names are indicative of the sex of a person, so the issue may be with the new right to choose foreign names for children regardless of citizenship and nationality of the parents. And then, how can you tell immediately tell if Charlie, Sam, Chris or Alex is a boy or a girl?

So to answer our opening question, in our view you can ask the candidate’s sex as a condition of taking the job application further but only where there is a legal justification for doing so, e.g. where women are not allowed in the job.  To ask in other circumstances is to invite discrimination allegations.