(dissenting).
I respectfully dissent.
*891The central issue on appeal is whether, because appellant Pamela Krueger is an employee of a subcontractor, she is precluded from maintaining an action under the Minnesota Human Rights Act (MHRA) for egregious sex discrimination that she alleges was inflicted upon her by a general contractor at a construction site. The section of the MHRA on which appellant’s claim is based is Minn.Stat. § 363A.17 (2006), which reads a follows:
It is an unfair discriminatory practice for a person engaged in a trade or business or in the provision of service:
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(3) to intentionally refuse to do business with, to refuse to contract with, or to discriminate in the basic terms, conditions, or performance of the contract because of a person’s ... sex....
The MHRA also provides “[i]t is the public policy of this state to secure for persons in this state, freedom from discrimination” and “[t]he provisions of [the MHRA] shall be construed liberally for the accomplishment of the purposes thereof.” Minn.Stat. §§ 363A.02, .04. Moreover, the MHRA provides that “[a]ny person aggrieved by a violation of this chapter may bring a civil action_” Minn.Stat. § 363A.28, subd. 1. We are to give statutes their plain and ordinary meaning. Minn. Stat. § 645.16 (2006).
Here, the district court granted a motion to dismiss under rule 12 of the Minnesota Rules of Civil Procedure. Thus, we assume the facts most favorable to the claimant as set forth in the pleadings. The complaint alleges that Ms. Krueger, the sole owner-member and operator of Diamond Dust, was working at the construction site for Eagles Landing Condominiums in Wabasha. Respondent Zeman Construction Company was the general contractor on the project. Ms. Krueger’s firm (her employer) was a subcontractor for sheetrocking/drywall work. Ms. Krueger claimed to have been sexually harassed by the two job supervisors employed by the general contractor and to have encountered a sexually abusive, hostile, and threatening working environment.
The alleged specifics of the discriminatory conduct include referring to Ms. Krueger as a “c — t,” and “f_g b — h,” directing profanity and vulgar gestures towards her family, telling her that cleaning rather than drywalling was appropriate work for her, following her to the bathroom and leaning on the bathroom door while she was inside, tracking the number of times she used the bathroom, subjecting her to physical intimidation, equipping condominium units with makeshift, exposed urinals which male construction workers used while she worked in the immediate area, suggesting that she maybe wanted a urinal painted pink for her use, ordering her to get on her hands and knees to clean up drywall material that had fallen on the protective floor covering while drywall work was in progress, and laughing at her when she began to cry at the humiliation. Male supervisors of other subcontractors were not subjected to such conduct. The respondent, as the general contractor, was informed of these incidents on several occasions but did not take corrective or remedial action. All of this conduct allegedly occurred at a job site where Ms. Krueger was present as a worker pursuant to a contract between her employer and respondent.
The Minnesota statute in its simplest, stripped-down form prohibits business practices that “discriminate in the ... performance of the contract because of a per*892son’s ... sex.” Minn.Stat. § 363A.17. The conduct set forth in the complaint clearly discriminates against Ms. Krueger as a worker at the Wabasha site. There is no language in the statute that requires that Ms. Krueger be an employee of or in a direct, personal contractual relationship with the general contractor. Instead, the statute describes conduct that is prohibited, namely discriminating in the performance of the contract based on, among other things, gender. Allegedly, the discrimination here was perpetrated by the respondent, and the discrimination occurred in the performance of the construction project pursuant to contract between the general contractor and Diamond Dust as a subcontractor. Minus that contract, Ms. Krueger would not have been on the job-site, and respondent would not have had the opportunity to sexually harass her.
The point on which this panel is divided is whether the Minnesota statute should be interpreted as requiring privity of contract. Absent statutory language or case-law requiring privity, I would not impose such a requirement. The majority looks at the disjunctive character of the phrase “terms [or] conditions, or performance” of the contract to conclude privity is required. Because the statute still does not contain a contractual or privity requirement in “performance” claims, this analysis does not impose a privity requirement. We should simply work with the plain language.
In reaching its conclusion that privity is required, the majority heavily relies on the U.S. Supreme Court interpretation of the “make and enforce contracts” clause of 42 U.S.C. § 1981 as set forth in Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 475-76, 126 S.Ct. 1246, 1249-50, 163 L.Ed.2d 1069 (2006), for the proposition that one must have rights under a contract to bring a claim. In relevant part, section 1981 reads as follows:
(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens....
(b) “Make and enforce contracts” defined
For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
42 U.S.C. § 1981.
Although both the Minnesota statute and section 1981 refer to contracts and discrimination, our statute and the federal statute are distinctly different. Section 1981 was originally enacted to assure freed slaves the equal right to contract. The definition of the “make and enforce” clause includes “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.” The operative language explicitly focuses on the contractual relationship and protecting the right to contract. In fact, the federal law is premised on the injured person’s contractual right. By contrast, Minn.Stat. § 363A.17 prohibits business discrimination by the alleged offending party in its “performance of the contract.” The Minnesota law focuses on discrimination by persons, including corporations, in their performance of the contract, and prohibits the alleged perpetrator from engaging in discriminatory conduct in *893all its activities related to its contracts. By focusing on the alleged perpetrator, the Minnesota law does not limit protection to individuals or entities that have personally contracted with that perpetrator.
On several occasions, Minnesota courts have noted that, due to differences in statutory language, interpretation of federal antidiscrimination statutes may not be helpful in interpreting the MHRA. Ray v. Miller Meester Adver. Inc., 684 N.W.2d 404, 408-09 (Minn.2004); Kolton v. County of Anoka, 645 N.W.2d 403, 407 (Minn.2002); Cummings v. Koehnen, 568 N.W.2d 418, 422 n. 5 (Minn.1997). Because the statutes differ, the federal caselaw on this issue is not on point and should not limit the unambiguous Minnesota law.
It is noteworthy that a federal district court has recently interpreted Domino’s as being limited to a claim under the “make, and enforce contracts” clause and allowed a claim without privity under the “full and equal benefit of all laws” clause of 42 U.S.C. § 1981. Moonblatt v. Dist. of Columbia, 572 F.Supp.2d 15, 25-26 (D.D.C.2008); Mazloum v. Dist. of Columbia Metro. Police, 522 F.Supp.2d 24, 38 (D.D.C.2007). In Moonblatt and Mazloum, plaintiffs brought section 1981 claims in the absence of any type of contractual relationship and the defendants, on summary judgment, argued that Domino’s required a contractual relationship. The court allowed both claims to continue reasoning that the claims were not barred because of the full and equal benefit of all laws clause of section 1981. The court noted that the Domino’s plaintiff failed to argue that he was entitled to relief under the full and equal benefits clause and reasoned that Domino’s is limited to cases interpreting the make and enforce contracts clause only. This willingness to give an expansive, non-privity reading to section 1981 is significant. It results in section 1981 having a reach parallel to that urged in this dissent for Minn.Stat. 363A.17. We should not interpret Domino’s as imposing a privity requirement in deciding the reach of Minnesota law when a federal district court does not reach that conclusion in deciding section 1981 cases.
I note that the stringent requirements of privity have been eliminated as requirement to provide standing in a variety of settings. See Minn. Mining and Mfg. Co. v. Nishika Ltd., 565 N.W.2d 16, 20-21 (Minn.1997) (acknowledging the legal battle to break down the barrier of “privity,” which culminated in widespread adoption of strict products liability in tort); Milbank Mut. Ins. Co. v. Proksch, 309 Minn. 106, 115, 244 N.W.2d 105, 110 (1976) (holding privity was not required in a breach of warranty action); Farr v. Armstrong Rubber Co., 288 Minn. 83, 96 n. 1, 179 N.W.2d 64, 72 n. 1 (1970) (stating commercial seller who sells defective product is liable for physical harm even if seller is not in privity with the injured person); Dornack v. Barton Constr. Co., 272 Minn. 307, 317-18, 137 N.W.2d 536, 544 (1965) (standard of care owed by contractor to traveling public not fixed by terms of its contract with the state, which required erection of barricades and warning signs, but terms of contract are relevant in evaluating the reasonableness of the contractor’s conduct).
In reaching our conclusion, we should be faithful to the intent of the MHRA — that it be liberally construed to achieve its purpose of freedom from discrimination allowing any aggrieved person to bring a claim. Minn.Stat. §§ 363A.02, .04, .28, subd. 1. As this case is presented to us, while working for a subcontractor pursuant to a contract with respondent, Pamela Krueger suffered *894the alleged discrimination as a result of work-related conduct of respondent’s employees. I would reverse dismissal of her claim.