Criminal records — what they are
A criminal record is the raw event data — arrests, charges filed, dispositions (convicted, acquitted, dismissed, deferred), sentences, and supervisory milestones (probation, parole). It lives in two places: the originating agency (police, sheriff, court) and the state's central repository (e.g., the California DOJ, the Texas DPS Computerized Criminal History). Federal arrests live in the FBI's Triple-I system, accessible via fingerprint.
Background checks — what they are
A background check is a report compiled from criminal records and other sources — credit, civil judgments, employment, education verification, driving record. It is created by a Consumer Reporting Agency (CRA) under the Fair Credit Reporting Act (FCRA). The four FCRA requirements every employer must follow (Bchex compliance guide): clear written authorization, separate disclosure document, pre-adverse-action notice with a copy of the report, and post-adverse-action notice with FCRA rights.
EEOC overlay — disparate-impact protection
The EEOC overlays FCRA with anti-discrimination protections. Per its background check guidance, it is illegal to base background-check decisions on race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40+). The EEOC also requires criminal history to be evaluated case-by-case — considering the nature of the offense, time elapsed, and the nature of the job (JD Supra — 2026 Fair Chance Hiring updates).
2026 EEOC changes you should know
On January 22, 2026, the EEOC voted 2-1 to revoke anti-harassment guidance previously approved in 2024 (Squire Patton Boggs employment update). The vote signals broader rule-revision at the agency in 2026 — though the core FCRA and Title VII obligations on background checks remain unchanged.
Ban-the-Box and Fair Chance laws
Roughly 37 states and 150+ cities/counties now restrict when an employer may ask about criminal history ("Ban the Box"). California, Hawaii, Illinois, Massachusetts, Minnesota, and New York have the strongest statewide laws. Federal contractors are governed by the Fair Chance Act, which delays criminal-history inquiries until a conditional offer is made. Checkr's primer (Checkr — FCRA + EEOC) is one of the better recent overviews.
What this means for individuals
When a CRA pulls a report on you, you have three FCRA rights worth knowing: (1) the right to a copy on request; (2) the right to dispute inaccurate items in writing; and (3) the right to be notified before any adverse action (denial of job, lease, or credit) based on the report. If a record is sealed under Clean Slate (see our expungement article), the CRA is supposed to filter it — but errors happen, so check the report yourself.