dissenting. I would affirm the well-reasoned decision of the court of appeals. Results such as this one offend the average citizen’s sensible recognition of what is right and what makes common sense. I suggest that if one of us (including the author) mandated that one of his or her older female relatives be manhandled by a male nurse, a spirited effort would be made to consign that judge to the nether regions.
The curious thing about the majority opinion is that the syllabus law is in large measure sound.4 However, the majority completely misses the mark in applying the ruling case law to the record before us. Having conceded that we should be guided by federal law, the majority cites the BFOQ exception to gender discrimination provided by Section 703(e)(1) of the Civil Rights Act of 1964:
“(e) Notwithstanding any other provision of this subchapter, * * * it shall not be an unlawful employment practice for an employer to hire and employ employees * * * on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation *623of that particular business or enterprise * * *.” (Emphasis added.) Section 2000e-2(e), Title 42, U.S.Code.
Having mouthed a test which was met by an uncontested motion for summary judgment,5 the majority cites Internatl. Union, United Auto., Aerospace & Agricultural Implement Workers of America, UAW v. Johnson Controls, Inc. (1991), 499 U.S. -, 111 S.Ct. 1196, 113 L.Ed.2d 158, which has exactly nothing to do with male nurses touching the “personal parts” of elderly female patients.
The applicability of the BFOQ should be clear enough to even one untrained in the law. The court of appeals held that the record demonstrates the patients at Little Forest require female attendants. I agree. In my view the BFOQ was established. Since all this is lost on the majority, I dissent.6
. The weakness in the syllabus is that it never mentions the federal law upon which this case is decided, specifically the bona fide occupational qualification (“BFOQ”) defense to a Title VII action. Section 2000e-2(e), Title 42, U.S.Code.
. We recently approved and adopted Celotex Corp. v. Catrett (1986), 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265, in Wing v. Anchor Media, Ltd. of Texas (1991), 59 Ohio St.3d 108, 570 N.E.2d 1095, wherein, at paragraph three of the syllabus, we held: “A motion for summary judgment forces the nonmoving party to produce evidence on any issue for which that party bears the burden of production at trial.” While neither the commission nor the courts below had the benefit of that important statement of the law, the court of appeals’ opinion should be affirmed on this basis alone.
Little Forest bore the burden of establishing the BFOQ defense at trial. In its motion for summary judgment, Little Forest provided affidavits establishing the BFOQ defense, thereby shifting the burden of production. In response to this motion the commission produced no evidence. Consequently, Little Forest was entitled to judgment as a matter of law.
. I cannot neglect to comment on the hearing examiner’s failure to grant the hospital’s motion in limine after appellant’s complete disregard for the Ohio Rules of Civil Procedure. The majority simply passes this issue off by indicating the hearing examiner “concluded that the information * * * had been provided by the opposing party.” We should limit ourselves to the record, which is devoid of any evidence to support such a conclusion — no testimony, no affidavits and not even a professional statement by appellant’s counsel. This was clear-cut error, albeit harmless given a proper disposition of the case, not an exercise of “discretion” on the part of the trier of fact.