concurring in the judgment and the opinion of the court.
I agree that we should affirm despite the error in the supplemental instruction. *899The fact that the jury may have been influenced decisively by that instruction, as suggested by the length of its deliberations before the instruction was given (2 hours) and after (8 minutes), is not important. The case should not have been allowed to go to the jury; no reasonable jury could have found a violation in this case. .
My reason for writing separately is to urge district judges to do a better job of presenting the issue of “motivating factor” to a jury than was 'done in the original instruction, even though that instruction did not misstate the law. It may be unrealistic to think that jury instructions are very important to the jury; their principal importance may lie in placing bounds on what the lawyers can say to the jury in their closing arguments. Still, some pains should be taken to make jury instructions clear. As we said in Gehring v. Case Carp., 43 F.3d 340, 344 (7th Cir.1994), in disapproving the use of the term “determining factor” in jury instructions in cases under the age discrimination law, “What the jury needs to know can, and should, be expressed in simple language.” Jury instructions should turn the language of statutes and judicial opinions, which is generally not drafted with a lay readership in mind, into language that poses concrete decisions for lay jurors to make. An instruction that uses the term “motivating factor” does not do this.
The original instruction did try to explain the term: “you may find that plaintiffs’ race was a ‘motivating factor’ if the racial composition of the plaintiff group played [a] part or a role in the defendant’s salary determinations to set plaintiffs’ salaries. However, the racial composition of the plaintiff group need not have been the only reason for defendant’s salary determinations.” But to say that something plays “a part or a role” in the decision about which the plaintiff is complaining is not illuminating.
To point the way to the drafting of an intelligible instruction, consider the following cases:
1. The plaintiff proves that the defendant is hostile to members of the plaintiffs race (religion, sex, ethnicity, etc. — I’ll use “race” to’ stand for all the forbidden grounds), period.
2. The plaintiff proves that the defendant, because of that hostility, would have fired (or taken other adverse action against) him even if he had been a satisfactory worker ’in the sense that had he been of the “right” face he would have been retained.
3. The plaintiff proves the same thing as in case 2 but the defendant presents evidence that it would have fired him anyway, regardless of his race, because he was an unsatisfactory employee.
4. The defendant would not have fired the plaintiff for his race alone or for his performance alone; it was some combination of racé and performance that caused the firing. His performance was marginal; his race pushed him over the edge. In other words (though not words that would be meaningful 'to most jurors), race and performance were each necessary conditions of the discharge, but neither was a sufficient condition. In case 2, race is a sufficient condition; in case 3, performance is a sufficient condition.
In case 1, the defendant is entitled to judgment, because to be a “motivating factor” racial hostility has to have some, even if. an attenuated, effect; to motivate is to influence, to provide an impetus to action. Stopka v. Alliance of American Insurers, 141 F.3d 681, 688 (7th Cir.1998); Chambers v. American Trans Air, Inc., 17 F.3d 998, 1004 (7th Cir.1994); Parker v. Sony Pictures Entertainment, Inc., 260 F.3d 100, 107-08 (2d Cir.2001). Plenty of people harbor prejudices of various sorts with*900out acting on them. Title VII does not forbid prejudice as such. Price Water-house v. Hopkins, 490 U.S. 228, 262, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (concurring opinion).
In ease 2, the plaintiff has proved that race was a motivating factor. Even if no other factor that might have influenced a decision to fire the plaintiff were present, he would have been fired.
Case 8 is where the 1991 amendment to Title VII that inserted “motivating factor” into the statute bites. 42 U.S.C. § 2000e-2(m); see Desert Palace, Inc. v. Costa, 539 U.S. 90, 128 S.Ct. 2148, 156 L.Ed.2d 84 (2003). The amendment entitles the plaintiff to an instruction that the defendant bears the burden of persuading the jury that the fact that the plaintiff was an unsatisfactory employee would have induced the defendant to fire him even if the defendant would have fired him anyway because of his race had he been a satisfactory employee, and thus even if “a discriminatory intent entered into the decision to Are him.” Miller v. Illinois Dept. of Corrections, 107 F.3d 483, 484-85 (7th Cir.1997); Weston-Smith v. Cooley Dickinson Hospital, Inc., 282 F.3d 60, 64 (1st Cir.2002). If the defendant carries this burden, it escapes having to pay damages but, by virtue of the 1991 amendment, still has to pay the plaintiffs attorney’s fees and is also subject to declaratory and injunctive relief. 42 U.S.C. § 2000e-5(g)(2)(B); Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F.3d 716, 723 (7th Cir.1998); Borgo v. Goldin, 204 F.3d 251, 255 n. 6 (D.C.Cir. 2000).
In an ordinary tort case, and in Title VII cases as well prior to the 1991 amendment, the plaintiff would have had to prove not only a breach of a legal duty by the defendant but also that had it not been for that breach the plaintiff would not have been injured. E.g., McQuillen v. Wisconsin Education Ass’n Council, 830 F.2d 659, 664 (7th Cir.1987); Germane v. Heckler, 804 F.2d 366, 368 (7th Cir.1986); Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 594-95 (2d Cir.1988). In other words, if the plaintiff would have been injured anyway, he could not recover anything; so, once the defendant produced some evidence of this possibility, the burden of negating it rested on the plaintiff. If, therefore, as in my case 3, the defendant presented evidence that race, while a sufficient condition for the firing of the plaintiff, was not a necessary condition — because he would have been fired anyway, for a reason that would not violate discrimination law — the plaintiff would have the burden of persuading the jury that he would not have been fired had it not been for his race.
In other words, there are two different senses of “cause” in case 3. Racial hostility caused the defendant to fire the plaintiff in the sense that it supplied the impetus to the defendant’s action, but in an equally good sense did not cause the plaintiff to lose his job because he would have lost it even if the defendant had not been induced to fire him by racial hostility.
Of course, jurors should not be burdened with terms like “sufficient condition” or “necessary condition” (or for that matter “catalyst”) or introduced to the complex meanings of “cause.” They should be told simply that the plaintiff must prove that he would have been fired, because of his race, even if he had been a satisfactory worker (not necessarily a superlative worker, but a worker who would have been retained had he been of a different race), but that if the defendant presents evidence to show that the plaintiff would have been fired anyway, regardless of his race, because he was an unsatisfactory employee, it is the defendant’s burden to prove this by a preponderance of the *901evidence. This is more precise and informative than talk about “motivating factor” and whether something “played a part or a role” in the defendant’s action.
The defendant in this case argues that the “motivating factor” amendment is applicable only in a “mixed motive” case, and this was a “pretext” case. The Second and Third Circuits have accepted the argument. Watson v. Southeastern Pennsylvania Transportation Authority, 207 F.3d 207, 214-20 (3d Cir.2000); Fields v. New York State Office of Mental Retardation & Developmental Disabilities, 115 F.3d 116, 121-24 (2d Cir.1997); the Supreme Court declined to address it in the Desert Palace case. See 539 U.S. at 94 n. 1, 123 S.Ct. 2148. Let me try to cut through the jungle of verbiage. If a defendant decides to put on the defense (actually just a partial defense, a defense against damages but not against other relief) that he would have fired the plaintiff anyway,' he makes the case a case of mixed motives or, as I would prefer to say (though not to a jury!), because it is a little clearer, a case of dual causes: race, but also performance. He makes it case 3. But if instead, he argues that the only reason he had for firing the plaintiff was poor performance, this means he is going for broke; he wants a complete defense, not the partial one that is all that the 1991 amendment allows, and he can obtain that absolution only if the jury is convinced that the plaintiffs performance was the only reason for firing him; that race was not in the picture at all. If the jury is not convinced, performance falls out of the picture, and we are left with a case in which the only factor in the plaintiffs dismissal is race: case 2. .
Case 4 may seem the most troublesome. Actually it is perfectly clear that the plaintiff should win it. We can see this by comparing the situation of two employees of the same employer, doing the same job, both equally subpar but one is black and the other white. Under the facts assumed in 'case 4, the black will be fired but not the white, because his deficiencies are not alone enough to get one fired; one must be of the “wrong” race as well. It is a clear case of racial discrimination' with consequences. An employer doesn’t have to retain ' marginal' employees, or for that matter superior ones; but he cannot use race to differentiate between those he retains and those he fires. The only difference between this cáse and case 2 is that if the plaintiff were a better ■ worker, he might have been retained despite the defendant’s racial hostility, and so there is a sense in which he contributed to his own downfall. But this, it should be made clear to the jury, has no legal significance.
So: defendant wins 1; plaintiff wins 2 and 4, and 3 goes to the jury with an instruction placing the burden of proving an absence of a causal relation on the defendant.