dissenting. The proper application of employment discrimination law as enumerated by the federal courts in Title VII actions, where an employer defends by raising the privacy interests of its customers as the basis for a bona fide occupational qualification (“BFOQ”) defense, should reasonably result in the affirmance of the judgment of the court of appeals here.
The particularized facts of this matter are that Little Forest Medical Center operates a skilled nursing facility providing health care services to some two hundred fifty-six elderly patients, eighty percent of whom are female. The majority of the patients require “total care,” meaning that these patients require assistance with all activities of daily living, including bathing and dressing. At the time of hearing, only twelve patients were ambulatory and only four patients were able to bathe themselves. In addition, a very high number of the patients were incontinent. Aides provide constant personal service to the patients, which includes bathing the patients, assisting in the patients’ use of bedpans, providing bowel and bladder training for patients, and giving enemas. An attending physician at Little Forest testified that the female patients would refuse to accept care from a male aide. Based upon these facts Little Forest reasonably concluded that gender (female) was a BFOQ for employment at Little Forest as a nurse’s aide for the protection of the privacy of its patients.
Congress has specifically provided for the BFOQ as a defense to actions brought for employment discrimination pursuant to the Civil Rights Act of 1964, as amended. Under Section 703(e)(1) of the Act, Section 2000e-2(e), Title 42, U.S.Code, “ * * * it shall not be an unlawful employment practice for an employer to hire and employ employees * * * on the basis of his * * * sex *618* * * in those certain instances where * * * sex * * * is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise * * *.” The United States Supreme Court, in reference to this statutory defense, stated, “ * * * [t]he existence of the BFOQ exception shows Congress’ unwillingness to require employers to change the very nature of their operations in response to * * * [Title VII].” Price Waterhouse v. Hopkins (1989), 490 U.S. 228, 242, 109 S.Ct. 1775, 1786, 104 L.Ed.2d 268, 283.
Certainly, there should be no argument that the BFOQ defense may be based upon the employer’s concern for the privacy rights of its patients. This conclusion certainly would be entirely consistent with the Ohio statute known as the “Patient Bill of Rights” which mandates that nursing homes protect the privacy of their residents. R.C. 3721.13(A)(11).
Within its brief, Little Forest relies upon the BFOQ defense, not the “business justification” standard as stated by the majority. Further, the appellee recognizes in its argument here that the BFOQ is an affirmative defense and that, as the employer, Little Forest has the burden of proving that the essence of its business operation would be undermined unless it could hire members of one sex exclusively. See Dothard v. Rawlinson (1977), 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786.
The appellee presented all the appropriate evidence before the Ohio Civil Rights Commission to properly support its BFOQ defense that its policy of hiring only female nurse’s aides was to protect its patients’ privacy rights. The commission’s findings of fact and conclusions of law so stated:
“ * * * Respondent [Little Forest] proved there was a factual basis for its belief that some female patients would object to being viewed in the nude or having their genitals touched by males. The testimony of the physician who treated many of Respondent’s female patients and the nurses who cared for them supported this conclusion. The Commission did not present any evidence to the contrary.”
Here, Little Forest appears to be aware that its hiring practice limiting aide employees to females is “overt discrimination” as described in Dothard, supra, at 332, 97 S.Ct. at 2728, 53 L.Ed.2d at 799, and also recognizes that it must bear the burden of establishing that its otherwise unlawful classification falls within the BFOQ exception.
Where privacy invasions of guests are the basis of the BFOQ defense, rather than the physical ability of one sex to perform required job responsibilities, there are different considerations of proof needed by the employer. Accordingly, in Fesel v. Masonic Home of Delaware, Inc. (D.Del.1978), 447 F.Supp. 1346, it was stated:
*619“ * * * [Wjhen an employer defends a sex discrimination action by raising the privacy interests of its customers as the basis for a bfoq defense, that employer must prove not only that it had a factual basis for believing that the hiring of any members of one sex would directly undermine the essence of the job involved or the employer’s business, but also that it could not assign job responsibilities selectively in such a way that there would be minimal clash between the privacy interests of the customers and the non-discrimination principle of Title VII.” Id. at 1351.
In Harden v. Dayton Human Rehabilitation Ctr. (S.D.Ohio 1981), 520 F.Supp. 769, affirmed (C.A.6, 1985), 779 F.2d 50, the court held that the employer had not sustained its affirmative defense of BFOQ because it had failed to establish either that the hiring of women guards would undermine the essence of the employer’s operations, or that job responsibilities could not be assigned in order to minimize the anticipated conflicts.
Here, the privacy concerns of the employer relative to its elderly guests should be given a significantly higher degree of attention and consideration by the Civil Rights Commission, as well as by the reviewing courts, than would be given the privacy concerns of management for inmates in a prison facility. As to these privacy concerns, Little Forest presented evidence of the intimate care and attention that was needed by a majority of its female patients, and that they would be unwilling to accept the care from a male aide.
In support of its position that job responsibilities could not reasonably be reassigned in order to minimize conflicts, Little Forest adduced evidence that it could not reasonably accommodate a male aide without upsetting its whole staff routine, and without incurring additional business costs. Evidence was offered to show that it could not rearrange its assignment of aides without creating an additional, and unnecessary, position. The administrator of Little Forest testified that there are male and female residents on each floor of the facility, that an aide is assigned to a section or block of rooms on each floor, and that each aide provides intimate personal care for the patients in the assigned section.
It was also demonstrated that the registered nurses and the licensed practical nurses are assigned to a block of rooms in the same manner as the aides. This system of assignment is intended to make the most efficient use of the employees’ time. If an aide does not report to work as scheduled, then the group of rooms assigned to the remaining aides is adjusted according to a pre-designed schedule and each aide knows the rooms to which she is assigned.
The administrator at Little Forest also testified that if a male aide were hired to provide personal care for the female residents who did not object and *620for the limited number of male residents, then the male aide would be an extra employee and such an employee would be surplusage. It certainly cannot be the intent of this federal Act to require employers to incur additional needless expense to accommodate a male aide, nor can I believe it to be the meaning of this law to require employers to deliberately mismanage their operations. See Norwood v. Dale Maintenance System, Inc. (N.D.Ill.1984), 590 F.Supp. 1410.
Based upon all the aforestated evidence submitted by Little Forest, it sustained its burden of supporting its BFOQ defense based upon the privacy interests of its patients.
The commission offered the testimony of one Dr. May Wykle, a professor of psychiatric and gerontological nursing, who had never visited Little Forest and was not personally familiar with the physical layout of Little Forest. She testified that in her opinion any nursing facility such as Little Forest could assign a male nurse’s aide to serve only male patients without diminishing the quality of patient care, or could assign the male aide selectively to those female patients who did not object to such assignment.
The court of appeals ruled in favor of Little Forest upon the basis, inter alia, that the commission’s decision was not supported by reliable, probative and substantial evidence. I agree with the court of appeals.
Little Forest sets forth in its cross-appeal that the court of appeals should have sustained the assignments of error claiming procedural errors committed by the commission hearing officer concerning the testimony of the commission’s expert witness. I am in agreement with the cross-appellant in this regard. The hearing officer of the commission abused his discretion in not granting Little Forest’s motions relating to discovery. The history of the case in this regard is as follows. After the testimony and evidence of Little Forest were presented to the hearing officer, counsel for the commission requested a postponement in order to secure an expert witness to rebut the employer’s case. The hearing officer granted a sixty-day postponement over Little Forest’s objections.
Shortly thereafter, Little Forest served the commission’s counsel with interrogatories which sought the identity of the expert witness to be used by the commission and the subject matter of the testimony to be offered. The commission did not answer the interrogatories. On December 2, 1987, Little Forest moved for an order compelling answers to interrogatories. The commission ignored the motion but its counsel informally advised counsel for appellee, in a telephone conference, that the commission intended to call a person identified as Dr. May Louise Wykle as its rebuttal witness. Counsel for the commission did not, however, state the subject matter of the witness’s anticipated testimony.
*621On December 23, 1987, Little Forest filed a motion in limine to prevent Dr. Wykle from testifying as a sanction against the commission for its refusal to answer interrogatories. The commission did not respond to the motion in limine. The hearing officer overruled the motion in limine and the motion to compel on January 7, 1988. When these efforts to obtain discovery regarding the commission’s rebuttal witness failed, counsel for Little Forest subpoenaed Dr. Wykle for a deposition. The commission moved to quash the subpoena the same day that it was served. The following day, January 12, 1988, the hearing officer granted the commission’s motion to quash before counsel for Little Forest had an opportunity to respond. Little Forest then moved for a postponement of the hearing to permit its counsel to depose the witness but that motion was denied.
Thereafter, the expert witness (Dr. Wykle) testified over objection, the record was closed, briefs were filed, and the hearing officer issued a report recommending a finding against Little Forest. Little Forest filed objections to the report. These objections were overruled by the commission and the recommended order was adopted verbatim.
The actions of the hearing officer in denying all of Little Forest’s discovery motions were unreasonable and an abuse of discretion. Accordingly, the testimony of the commission’s expert witness should not have been considered by the commission. The court of appeals should have sustained this assignment of error of Little Forest.
Additionally, I would affirm the judgment of the court of appeals relative to the tolling of the employer’s liability for back pay when comparable work had been offered the complainant. On May 4, 1987, Little Forest offered Rayferd Lawson full-time employment in the maintenance department at the nursing home. If Lawson had accepted the offer, his wage rate would have been $.70 an hour more than is paid to an aide. In all other respects, it appears that the terms and conditions of his employment would have been identical to that of an aide. This offer of employment was refused by Lawson.
The court of appeals correctly ruled that Lawson’s claim for back pay was tolled because he refused an unconditional offer of substantially equivalent employment. Ford Motor Co. v. Equal Emp. Opportunity Comm. (1982), 458 U.S. 219, 232, 102 S.Ct. 3057, 3065-3066, 73 L.Ed.2d 721, 732-733. The court of appeals agreed with Little Forest, and with the other courts which have ruled on this issue, that the position offered need not be identical but that it only needs to be “substantially equivalent.” Equal Emp. Opportunity Comm. v. Exxon Shipping Co. (C.A.5, 1984), 745 F.2d 967, 977; Rasimas v. Michigan Dept, of Mental Health (C.A.6, 1983), 714 F.2d 614, certiorari denied (1984), 466 U.S. 950, 104 S.Ct. 2151, 80 L.Ed.2d 537. Contrary to the *622argument made by appellant, the court of appeals did not reweigh the evidence but simply ruled that the commission erred, as a matter of law, when it applied the wrong legal standard in evaluating the employer’s unconditional offer of employment.
In the instant case, the position of employment offered to Lawson was substantially equivalent to the position of aide because the hours, working conditions, responsibilities and pay were similar. In certain respects, both positions required a measure of the same type of work because maintenance employees and aides both perform quasi-janitorial duties. If there is any doubt about the sufficiency of the offer of employment, that question is answered in Lawson’s own hand when he completed an application for employment and stated that one of the types of employment which he sought was “electrical maintenance.” Here, he was given work in the only type of “maintenance” done at the home.
Based upon all the foregoing, I would affirm the judgment of the court of appeals.
Moyer, C.J., and Wright, J., concur in the foregoing dissenting opinion.